Custom, Excise & Service Tax Tribunal
M/S. Mrf Ltd vs Cc, Chennai on 20 January, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI C/328/2004 (Arising out of Order-in-Appeal No. 60/2004 TVL (D) (ADK) dated 25.05.2004, passed by the Commissioner of Central Excise (Appeals) Trichy). M/s. MRF Ltd. : Appellant Vs. CC, Chennai : Respondent
Appearance Shri T. Ramesh, Adv., For the applicant Ms. Indira Sisupal, AC (AR) For the respondent CORAM Honble Shri D.N. PANDA, Judicial Member Honble Shri R. PERIASAMI, Technical Member Date of Hearing/Decision: 20.01.2016 FINAL ORDER No. 40084 / 2016 Per: D.N. Panda The precise question raised in this appeal is whether the software imported by the appellant in terms of Bill of Entry No. 15501 dated 30.07.2001 was Information Technology software in terms of entry 285 read with CTH 85.24 in terms of Notification No. 17/2001-Cus. dated 01.03.2001.
2.1 Ld. Counsel submits that the Bill of Entry itself shows that the software was imported separately along with hardware. The software was construed by the adjudicating authority as the goods falling under CTH 85.24 raising the issue that the software so imported was not Information Technology software to fall within the scope of the explanation given in the sl.no. 285 of the Notification above. The explanation reads as under:-
285. 49 or 85.24 The following goods, namely:-
(i) Information Technology software, and
(ii) Document of title conveying the right to use Information Technology software.
Explanation. - Information Technology 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.
Nil 2.2 Relying on the above statutory definition of Information Technology software provided by the notification, ld. Counsel submits that the purpose of the software was to serve the purpose as defined by the explanation without being controverted by Revenue leading any cogent evidence to the contrary. The software imported was used to manipulate and interact with the hardware imported. Thus appellant satisfied the condition of the explanation.
2.3 Appellant on the aforesaid premises says that the dispute is on interpretation of the explanation but not on any classification. The software imported by appellant serving the purpose defined by the explanation shall enjoy benefit of the notification and duty exemption is warranted.
3. Revenue on the other hand says that what is software is well defined in the judgment of the Apex Court in the case of LML Ltd. Vs. CC 2010-TIOL-75-SC-CUS. Therefore, appellant shall not get any exemption even though it falls under the CTH 85.24 under sl.no. 285 of the notification above.
4. Heard both sides and perused the records beginning from the adjudication order. We have also gone through the Apex Court judgment. the question before the Honble Court in the above case was classification of CD-ROM containing images of drawings and designs of engineering goods. But in the present appeal there is no such dispute on the classification. Ld. Commissioner (Appeals) has gone beyond the scope of SCN to reclassify the imported software which was not the dispute in the SCN. The only dispute was whether the software imported was Information Technology software and whether that is in accordance with explanation given under sl.no. 285 of the notification to grant notification benefit.
5. Having examined the scope of the explanation and utility of the above software, in absence of any contrary evidence or authentic literature, from the revenue, to discard the claim of the appellant it can irresistibly be concluded that the software imported by the appellant was Information Technology software for which appeal is allowed.
(Dictated and pronounced in open court)
(R. PERIASAMI) (D.N. PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
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