Case nº Order No. AAR/02(CUS)/2005 in Application No. AAR/110(CUS)/2004 of Authority for Advance Rulings, January 18, 2005 (case Dell India Private Limited Vs Commissioner of Customs and Central Excise and Ors.)
| Judge | For Appellant: S. Thirumalai and Krupa Venkatesh, Consultants and For Respondents: A.K. Roy, Joint CDR |
| President | Syed Shah Mohammed Quadri, J. (Chairman), Somnath Pal and B.A. Agrawal, Members |
| Resolution Date | January 18, 2005 |
Order:
Syed Shah Mohammed Quadri, J. (Chairman)
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M/s Dell India Private Limited - the applicant - is a wholly owned subsidiary of M/s Dell International Inc. USA, a foreign company. M/s Dell Computer India Private Limited is another wholly owned subsidiary of the said foreign company. The applicant acquired the business of the trading division of M/s Dell Computer India Private Limited with effect from November 1, 2004. It proposes to engage in import and trade of computers, desktops, notebooks, workstations, etc. On these facts, the applicant sought advance rulings of the Authority on the following questions:-
(a) Whether the pre-loaded software onto the computer hardware can be classified under CTH 85.24 when presented for assessment in complete computer systems; and
(b) As a consequence of (a) above, whether the benefit of nil rate of duty specified under Sl. No.157 of Notification No.21/2002/C dated 01-03-2002 as amended is applicable for the same.
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On examination of the application it was noticed that prima facie the application is liable to be rejected and by Order dated 14th December, 2004, M/s.Dell India Private Ltd. was called upon to show cause as to why the application should not be rejected for the following reasons:-
(1) question no. (a) is covered by the judgement of Hon'ble Supreme Court of India in Commissioner of Central Excise, Pondicherry v. ACER India Ltd. [ 2004 (172) E.L.T.289 (S.C.)];
(2) it appears from the comments of the Commissioners (copies of which are annexed hereto) that the applicant has already commenced importation of the goods in question.
In response to the said notice, Mr. S. Thirumalai and Ms. Krupa Venkatesh appeared today for M/s.Dell India Private Ltd. and Mr. A.K. Roy, Joint CDR for the Commissioners.
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Mr. S. Thirumalai has submitted that question (a) above is the main question and question (b) is a consequential question; he conceded that if no ruling is given on question (a), the determination of question (b) would not arise.
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In regard to the first ground in the show cause notice Mr. Thirumalai has argued that the judgement of the Hon'ble Supreme Court in ACER's case (supra) was rendered in the context of Central Excise Act and in the present case the question of classification arises under the Customs Act, therefore, the question cannot be said to be the same and the application could not be rejected on this ground. Mr. A.K. Roy, Joint CDR for the Commissioner has submitted that the...
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