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TMI Blog2018 (5) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... in the “Customised Software” by virtue of contract between parties that all the rights can be retained by the supplier of the software. Conclusion reached on this ground is not proper. Non-exclusive right to use the software - Held that:- Even in “Packaged” software the rights transferred, if any, are nonexclusive right to use the said software. Even in “Customised Software” it is possible that parties may agree to the same conditions. It is to the contracting party to decide the manner in which the right are to be transferred. These issues do not determine the nature of ‘software’. The difference between “Packaged” software and “Customised Software” has not been examined with respect to exact nature of the software of imported. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the software imported by them should not attract levy of CVD. However at the time of import the benefit was not extended to the importer. The importer paid the duty under protest and requested for a speaking order so that they could appeal against the same. Subsequently they filed the refund application which was rejected. 2.1 He further argued that the importer approached the Hon'ble High Court of Mumbai for relief in the matter. The Hon'ble High Court of Mumbai while disposing of the Writ Petition No. 2450 of 2007, ordered that the order of the assessment officer, and consequently the order rejecting the refund claim, set aside. The Hon'ble High Court further ordered that the assessing officer may pass fresh order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he imported software was urgently required, the appellants paid the CVD under protest and cleared the imported software on payment of duty under protest vide their letter dated 14.07.2009. The concerned Dy. Commissioner of Customs, Gp. VB passed the Order-in-Original in total disregard of the technical justification submitted by the appellants to him time and again, without understanding the true nature of the imported software. He has acknowledged the specialized nature of the imported software but have observed that the importer has been granted non exclusive right to use the said software as the basis of concluding that the imported software could not be considered as the customized software. Dy. Commissioner of Customs had referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importer does not have either source code. (iii) The imported has been granted nonexclusive right to said software. 5. We find that so far as the first and second issue are concerned, it is clear that in all the Packaged Software no rights such as copyright, trade mark or any other intellectual property rights, patent copy right etc. are transferred to the buyer. Similarly source code is also not transferred. The right to use Packaged Software is also a nonexclusive right. However just existence of these factors do not make any software Packaged Software . Even in the Customised Software by virtue of contract between parties that all the rights can be retained by the supplier of the software. Conclusion reached on this groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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