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1 - 9 of 9 (2.19 seconds)Section 14 in The Customs Act, 1962 [Entire Act]
Section 28 in The Customs Act, 1962 [Entire Act]
Section 28AB in The Customs Act, 1962 [Entire Act]
Section 112 in The Customs Act, 1962 [Entire Act]
Section 125 in The Customs Act, 1962 [Entire Act]
M/S Associated Cement Companies Ltd vs Commissioner Of Customs on 25 January, 2001
He submits that it is thus clear that M/s MSLI are creator of the said media and licensor have exclusive ownership rights and to protect their rights various agreements have been entered into by them and restrictions imported by them and therefore the value cannot be determined in terms of Rule 4 of Valuation Rules. The package cannot be sold to any OEM who has is not having agreement with MS during the relevant period. The value for the purpose of assessment should be the value of the media, the cost of replication and cost of software recorded on media. He places reliance on judgments in case of C.C (Import), Mumbai Vs. Excell Products Audio Visuals Pvt. Ltd 2014 (314) ELT 366 (TRI MUM) and Associated Cement Companies Ltd. Vs. Commissioner of Customs 2001 (128) ELT 21 (SC). He submits that subsequent to detection of case one of the distributor M/s Ingram Micro India started importing these goods directly and cleared the Bill of Entries by adding the royalty amount payable to Micrsoft in assessable value of goods. That in the present case the arrangement was made in such a way that the original licence holder or owner of software is ultimately paid which attracts Rule 9 (1) ( c). The importer has not included the amount of license granting the customers the right to use the same (royalty) which is a major chunk of the transaction and has declared only a fraction of the total value thus evading payment of duty on the total value. That as the quantifiable data for greatest aggregate quantity is not available, the value can not be determined in terms of Rule 7 and the Rule 8 has to be resorted to. That the authorised replicators are from whom Appellant has imported goods were appointed by M/s MSLI only and importer cannot get goods from any other person. The price to be paid by Appellant is decided by M/s MSLI, therefore for all practical/ legal purposes import is from MSLI only. That since the goods were sold to related buyers who were having agreement with the owner of licence (in this case MSLI), hence the advisory Opinion quoted by Appellant in their appeal are not sustainable. That similar submissions were made in case of Atul kaushik Vs. CCU (Exports) New Delhi 2015 (330) ELT 417 (TRI DEL) but the tribunal held that royalty charges are to be added to assessable value. He submits that looking to the facts of the case and investigation by SIIB it is clear that it was only after comprehensive investigation that the facts came to knowledge of the department and since the Appellant has made wrongful declaration they are liable for penalty and invocation of extended period. The Appellant has not produced any document that they had bonafide belief. That the original authority has confiscated only those goods which were provisionally assessed and which were released under Bond. Therefore such goods can be confiscate and Redemption fine can be imposed. He submits that there is no violations of principals of natural justice as the relied upon documents were supplied to the Appellant and they attended personal hearing.
The Customs Act, 1962
Commissioner Of Customs (Acc & Import) vs Samsung Electronics Pvt Ltd on 23 November, 2010
He submits that the duty is determinable under Rule 7 of Valuation Rules as the price at which the goods have been sold to OEM and DSP should be taken into account instead of adopting the price at which the goods have been sold by OEM and DSPs to the ultimate customer. He submits that the CDs meant for OEMs are customized and thus exempt from CVD under Notification No. 6/2006 CE. He further submits that confiscation of goods under section 111 (d) is not legal as they were not imported contrary to any prohibition impose under the act or law, nor there is any mis-declaration and hence section 111 (m) is not applicable. That penalty under section 112 (a) is not applicable as goods cannot be confiscated and Section 114 A is not invokable as no mens rea has been established. Alternatively he also submits that it has been held by the Tribunal in case of CCU (Import) Vs. Videomax Electronics that Section 112 and Section 114A are mutually exclusive and hence penalty under both section cannot be imposed simultaneously.
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