2002 (5) TMI 719

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....R.D. Negi, learned SDR, submitted that the Assistant Commissioner, under Adjudication Order No. 14/98, dated 9-11-1998 denied the benefit of the Notification No. 11/97-Cus. on the ground that the Notification (Srl. No. 173) excludes software required for operation of any machine working in conjunction with an automatic data processing machine and that as per Note 5(e) to Chapter 84, machines performing specific function other than data processing machine are to be classified in the Heading appropriate to their function; that Commissioner (Appeals), however, under the impugned order, allowed the appeal filed by the Respondents following the decision in the case of BPL Mobile Communications Ltd. v. C.C., 2000 (126) E.L.T. 986 (T) = 2000 (40) ....

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....elevant time computer software without any exclusion therefrom was fully exempted and denial of the benefit of notification on the basis of any subsequent amendment is illegal; that before amendment, term computer software covered both systems software including source code and object code as well as the application software which is to be used for specific function; that software has been defined as a totality of programmes usable on a particular kind of computer, together with the documentation associated with a computer programme such as manuals, diagrams and operating instructions (Jaico Illustrated Encyclopaedia of Technical Terms, Vol. II). She, further, submitted that the software imported by Respondents is for use by the National In....

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....finally relied upon the decision in the case Usha Martin Telekom Ltd. v. C.C., Calcutta, 2001 (138) E.L.T. 839 (T) = 2001 (45) RLT 1054 (CEGAT) wherein it has been held that the software for expansion of Mobile Switching Centre for telecom purposes and imported prior to 11-2-98 is entitled to benefit of the Notification 11/97 before its amendment by Notification No. 3/98-Cus.; that the appeal filed by the Revenue has been dismissed by the Supreme Court as reported in - 2002 (140) E.L.T. A90 (S.C.) = 2002 (49) RLT F7. 5. We have considered the submissions of both the sides. Serial No. 173 of Notification No. 11/97-Cus., dated 1-3-97 exempts from payment of Customs duty "Compu8ter Software falling under Chapter 49 or Heading 85.24 of ....