9911796707
TMI Blog2005 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 11/97-Cus., which defined the term "computer software". They took the view that the amendment was clarificatory and retrospective and hence applicable to the prior import. Accordingly the imported software was held to be other than computer software covered under Sl. No. 173 of Notification No. 11/97-Cus. The Assistant Commissioner of Customs, accordingly, ordered the goods to be assessed to duty on merits. In the assessee's appeal preferred against the decision of the original authority, the Commissioner of Customs (Appeals) held that the amendment to Notification No. 11/97-Cus., brought by Notification No. 3/98-Cus., was not clarificatory and did not impose any additional burden of duty on the importer. He observed that on, 6-2-98 (date on which the Bill of Entry was filed), there was no distinction between ordinary software and software used for a specific purpose as mentioned in the explanation added to Notification No. 11/97-Cus., by the amending Notification No. 3/98-Cus., and therefore the goods in question, which were admittedly software, should get the benefit of exemption in terms of Sl. No. 173 of Notification No. 11/97. Accordingly, ld. Commissioner (Appeals) allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in Circular No. 7/98-Cus., dated 10-2-98 regarding the scope of the term "computer software". 4. We find that the short question to be addressed, in the first instance, is whether the definition of "computer software" inserted by way of an explanation to Sl. No. 173 of Notification No. 11/97-Cus, dated 1-3-97 by the amending Notification No. 3/98-Cus., dated 11-2-98 is clarificatory. If it is clarificatory, it will have retrospective effect and will necessarily affect the subject import and, if it is not, it will have no retrospective effect and will not affect the import for which Bill of Entry was filed prior to the amendment. In the case of Penta Media Graphics Ltd. (supra), this Bench took the view that Notification No. 3/98-Cus. which amended Notification No. 11/97 by inserting explanation to Sl. No. 173 thereof only clarified an existing term viz. "computer software" vide para 7(b) of the order. On the other hand, in the case of BPL Mobile Communications (supra), the West Zonal Bench of this Tribunal did not consider the explanation as clarificatory and hence did not give retrospective effect to it. The Bench held that the benefit of exemption in terms of Sl. No. 173 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government, being satisfied that it is necessary in the public interest so to do, hereby directs that each of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed, shall be further amended in the manner specified in the corresponding entry in column (3) of the said Table. THE TABLE Sl. No. Notification No. and date Amendment 1 2 3 xxx xxx xxx 3. 133/85-Customs, dated the 19th April, 1985. In the said notification, the following Explanation shall be inserted at the end, namely - " Explanation ":- For the purpose of this notification, the expression "power projects (including gas turbine power projects)" shall mean such projects whose output or end product is power, but shall not include captive power plants set up by units engaged in activities other than power generation." The above amendment was held to be merely clarificatory vide para 15 of the Court's judgment which is extracted below : "15. We agree with the learned Senior Counsel for the appellants in his submission that the exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Note 5 in Chapter 44 of the CETA Schedule, in the context of deciding the correct classification of "Block board." The Revenue had claimed that the goods was classifiable under Heading 44.08 and, to substantiate this claim, it was argued that the amendments dated 19-3-1990 and 1-3-1992 of Chapter Note 5 in Chapter 44 of the CETA Schedule were clarificatory and retrospective. Accepting this argument, their lordships held that the said amendments of Chapter Note 5 were ex abundante cautela merely to clarify and make explicit that which was implicit earlier in the expression "similar laminated wood". Accordingly, their lordships gave effect to Chapter Note 5 as amended and classified the goods in question under Heading 44.08 for a period prior to the date of amendment. 7. In the instant case, the assessee claimed exemption from payment of duty on the telecom software imported by them prior to 11-2-1998 contending that telecom software was also covered by the expression "computer software." This expression was defined under explanation added to Sl. No. 173 of the table annexed to Notification No. 11/97-Cus. This explanation which was inserted by the amending Notification No. 3/98-Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
