TaxTMI 
TaxTMI 
2010 (6) TMI 374
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Software" means any representation of instructions, data, sound or image, including source code and object code, recorded in a machine readable form and capable of being manipulated or providing interactivity to a user, by means of an automatic data processing machine falling under Heading No, 84/71 but does not include software required for operation of any machine performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine". 3. The Appellants manufacture and supply Telecom communication equipment and they import equipment and Application Software necessary for Telecom equipment. The Departmental Authorities have denied the exemption on the ground that the imported software cannot be considered as 'Computer Software' even for the period prior to amendment of the cited Notification introducing the explanation quoted above. It is the view of the Department as argued by the learned DR that the amendment made is merely clarificatory and hence should be considered to be valid retrospectively. It is also the contention of the Department that the natural meaning of the word 'Computer Software' i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elecom software' is 'computer software' by dismissing the appeal of the Revenue, there is no scope for us in this case to go into the question as to whether the impugned 'Telecom software' is eligible for exemption as 'Computer Software' or not. The learned DR is correct that the reference to the Larger Bench was only to consider whether the amendment is retrospective or not but the Larger Bench has also decided the second question as to whether 'Telecom software' was 'Computer Software' prior to amendment by finally deciding the Revenue appeal. We find from paragraph 8 of the Larger Bench order that after deciding the appeal, the said Bench has directed the Registry to place the record before the Regular Bench only for pronouncement of its order at the earliest. Hence, notwithstanding the fact that the reference was only regarding one issue, since the Larger Bench has decided both the issues, we are required to follow the decision of the Larger Bench on both counts. We also note that the Department is not in a position to state as to whether any appeal has been filed against the said order and whether the said order has been stayed or reversed by any higher judicial forum. Hence, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia of Electronics, 2nd Edition, published by TAB Books which on page 835 clearly states that 'Telecommunication covers all forms of electrical or electronic communication'. Most humbly this is completely different from the task performed by data processing machines using computer software. 11. Reference is also made to The New Encyclopedia Britannica, 15th Edition which defines computers on page 322 as 'machines primarily designed for performing massive mathematical calculations according to programmed instructions' And Telecommunication networks on page 92 as 'communication between large numbers of information sources'. Most humbly the two Data Processing Computer and Telecommunication System are thus distinct separate entities. In light of this distinction the terms 'Computer software' and 'Telecom software' are NOT identical & 'Telecom Software' cannot be read into the notification in place of 'Computer software'. 12. Therefore even before the addition of the 'Explanation' it is clear that the interpretation of the term 'Computer Software' cannot be stretched to cover 'Telecom Software' as is the case of the Appellant. 13. Further as addition of the 'Exp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and decision itself is left to be taken by the original Division Bench. Most humbly an error of law has been committed by the Large Bench in going beyond the reference jurisdiction and deciding the appeal itself. The decision in the appeal being beyond the jurisdiction of the Large Bench is therefore most respectfully void in eyes of law, a nullity for the present Bench. Hon'ble Apex Court has held in Northern Plastics Ltd v. Hindustan Photo Film Mfg. Co. Ltd., 1997 (91) E.L.T. 502 (S.C.) in paragraph 10, "It is, therefore, obvious that the Appellate Tribunal CEGAT is a creature of statute and derives its jurisdiction and powers only from the statute creating it and not outside the same." 20. The Apex Court in Kiran Singh v. Chaman Singh, AIR 1954 SC 340 stated, 'A defect of jurisdiction strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not be an authority on the said question of law as held in State of Gujarat v. Akhil Gujarat Parvasi v. Mahamandal, AIR 2004 SC 3894 (C) The Hon'ble Apex Court in Madhav Rao Scindia v. UOI, AIR 1971 SC 530, held that it was not proper to regard a word, a clause or a sentence occurring in a judgment of the SC, divorced from its context, as containing a full exposition of the law on a question, when the question did not even fall to be answered in that judgment. (D) The Apex Court in Municipal Corporation of Greater Bombay v. BPCL, AIR 2002 SC 1638, held that for a case to be binding precedent, the fundamental requirement is that law pronounced should arise from the issues raised before the court and argued on both sides. (E) The Apex Court in A-One-Granites v. State of UP, AIR 2001 SC 1203, held that when no consideration was given to a question, the decision cannot be said to be binding. (F) Same ratio in State of U.P. v. Synthetics and Chemicals Limited, (1991) 4 SCC 139, Arnit Das v. State of Bihar, AIR 2000 SC 2264 and K.C. Sarkar v. Rajesh Ranjan - AIR 2005 SC 921. 26.....