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Issues:
1. Whether the benefit of Notification No. 11/97-Cus. is available for 'Neos Software Licence' imported by M/s. Jasmine Telecom India Ltd. Analysis: The appeal filed by M/s. Jasmine Telecom India Ltd. questioned the availability of the benefit of Notification No. 11/97-Cus. for the 'Neos Software Licence' they imported. The appellant argued that the software imported was an operative system software essential to run other software, similar to MS DOS UNIX. They relied on a previous decision by the Appellate Tribunal in the case of M/s. BPL Mobiles Communication Ltd., where it was held that Computer Software contained in tapes, disks, or CD ROMs for specific functions are entitled to duty exemption under the said notification. The appellant also claimed the benefit of a concessional duty rate applicable to hard disks under Sl. No. 160 of the notification. On the other hand, the Department contended that Computer Software loaded on a hard disk drive should be assessed as Computer Software and not merely as a hard disk, citing a Supreme Court decision in the case of Sprint RPG India Ltd. The Department argued that the notification exempts Computer Software specifically and not Software in general, emphasizing that the exemption does not apply to software required for purposes other than data processing, such as telecommunication software. After considering the arguments from both sides, the Tribunal noted that the exemption under Sl. No. 173 of Notification No. 11/97-Cus. is indeed available for Computer Software. However, the Tribunal highlighted the need for technical data to determine conclusively whether the imported software is used in a system containing automatic data processing machines. Without such technical information on record, the Tribunal decided to remand the matter to the adjudicating authority for a fresh adjudication, considering the technical aspects and functioning of the machines where the software in question is intended to be used. Therefore, the appeal was allowed by way of remand for further assessment based on technical data and machine operations.
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