TaxTMI 
TaxTMI 
TaxTMI 
2008 (10) TMI 58
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....puter software' so as to have retrospective effect from 1-3-1997". The respondents had imported software from M/s. Nokia Telecommunications Ltd., Finland for the purpose of operating telecom equipments in India. They filed a Bill of Entry dated 6-2-1998 for clearance of the goods and claimed exemption from payment of duty in terms of Sl. No. 173 of the Table annexed to Notification No. 11/97-Cus., dated 1-3-97. The entries against Sl. No. 173 ibid were as follows: S. No. Chapter or heading No. or Sub-heading No. Description of goods Standard Rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) 173 49 or 85.24 Computer software Nil - - The Customs authorities, on examination of the goods, found that it ....
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....ecision of the original authority, the Commissioner of Customs (Appeals) held that the amendment to Notification No. 11/97-Cus. was not clarificatory and did not impose any additional burden of duty on the importer. He observed that, on 6-2-1998 [on which date the Bill of Entry was filed], there was no distinction between ordinary soft ware and software used for a specific purpose and, therefore, the benefit of exemption in terms of Sl. No. 173 of Notification 11/97 should be extended to the software imported by the assessee. Accordingly, the learned Commissioner (Appeals) allowed the assessee's appeal. The Revenue's appeal against the Appellate Commissioner's order is before us, and so is the referred issue. 2. Heard both sides. The learn....
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....'computer software. It was argued that this 'pre-existing' position was only clarified by the Explanation added to Sl. No. 173 of Notification No. 11/97-Cus. Thus it argued that the telecom software imported by the respondents was not to be treated as 'computer software' specified at Sl. No. 173 of Notification 11/97-Cus. 3. The learned counsel for the respondents, on the other hand, submitted that the expression 'computer software' was correctly interpreted by the Tribunal in BPL Mobile Communications Ltd. v. Commissioner - 2000 (126) E.L.T. 986 (T) 2000 (40) RLT 249 (CEGAT), which decision was followed in Usha Martin Telekom Limited v. Commissioner [2001 (138) E.L.T. 839 (T) = 2001 (45) RLT 1054 (CEGAT-Kol.)] and BPL Telecom Ltd. v. Comm....
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....hine performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine is not classifiable under Heading 84.71 as automatic data processing machine. The argument is that a software which is used in a stand-alone computer [Automatic Data Processing (ADP) machine] only can be called computer software and that a software used in ADP machine for operation of any other machine cannot be called computer software. In our considered view, these hypertechnical arguments cannot be applied prior to 11-2-98. The Explanation, couched in technical language, was not there prior to that date. During those days, the entry at Sl. No. 173 of Notification No. 11/97-Cus. read 'compute....
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....rporating or working in conjunction with an automatic data processing machine would stay outside the ambit of 'computer software'. Such a restriction prejudicial to importers of computer software cannot be given retrospective effect. In any case, this restriction, which was introduced only on 11-2-1998, did not affect the software imported by the respondents prior to that date. 6. In the case of BPL Mobile Communications (supra), the West Zonal Bench of the Tribunal held that, in construing the meaning of the term 'computer' in the Notification, which was not found in the Tariff, one must apply its meaning as generally understood. We are in agreement with this view, which represents correct interpretation of the relevant entry in Notificat....