Custom, Excise & Service Tax Tribunal
M/S. Converges Labs Software vs Cce, Gurgaon on 15 April, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R.K.Puram, New Delhi-110066.
Principal Bench, New Delhi.
C/707-709/05 & C/732/05
M/s. Converges Labs software
Technologies(P) Ltd. & others Appellant
Versus
CCE, Gurgaon Respondent
Appearance
S/Sh. R.Parthasarthy with Ashok Dhingra, Advs. For Appellant
Sh. Vijay Kumar, Authorised Departmental Representative(DR) For Respondent
Coram: Honble Mr. D.N.PANDA, JUDICIAL MEMBER
Honble Mr. RAKESH KUMAR, MEMBER (TECHNICAL)
Date of hearing: 15.4.09
Misc. Order No.___________________
O R D E R
Shri R.Parthasarthy, Ld. Advocate who has extensively argued the matter submits that the appellant M/s. Converges Labs Software Technologies(P) Ltd. is a 100% EOU engaged in development software under STPI scheme. They imported Personal Access System (PAS) an equipment for MTNL from the foreign exporter M/s. U.T.Star Com Inc. USA (UTSC) which is appellant No.4(Noticee No.5) in the batch of appeal before the Tribunal. Shri Parthasarthy argues that the PAS was brought to India by import as a device for software developments. The appellant was under conception that only if the PAS equipment is installed in the premises of MTNL that shall serve the purpose of software development and without that, there is no scope for development of software. Therefore, in terms of the agreement dt.10.7.2001 between the appellant and MTNL, the equipment in question was imported from USA as per bill of entries forming part of the record. Export was done by the Appellant No.4.
2. The appellant M/s. Convergelabs Software entered into an agreement with exporter for the purpose of importing PAS system. Entire object was expected to be fulfilled with the help of an agreement with MTNL. An agreement entered into on 10.7.2001 between the MTNL and the appellant was extended in two spells. First extension was done on 9.7.02 and the second extension was on 14.2.03 while the equipments were imported and installed in the campus of MTNL. Revenue authorities seized part of equipment on 1.4.03 while the seized equipment was functional in the campus of MTNL. There were other accessories which were subject matter of imports were not possible to be seized because those had reached to the consumers. Against the seizure made, appellant made an application to the authorities to grant permission for re-exporting. Such request was done on 1.2.05. In between the period of seizure and request for making re-export, two show cause notices were issued. The first SCN was on 29.9.03 and the second SCN was on 25.3.04. Order-in-original was passed on 28.4.05. The appellant preferred appeal against the order-in-original before the Tribunal on 26.7.05. Alongwith appeal, stay application was filed. That application was heard on 9.9.05 resulting in waiver of pre-deposit during pendency of appeal.
2. Ld. Counsel further submits that the appellant has fulfilled entire condition of the notification governing import and that is appearing in page 368 of the paper book. The notification in question is 140/91-Cus dt.22.10.91 and as amended from time to time. He submits that software development is a very broad concept for which meaning of the term was found out by two technical reports and that was placed before the Ld. adjudicating authority. But authority brushed aside such document. The authority only proceeded with the allegation that PAS equipment was imported by the appellant has escaped duty and benefit of notification is not available to the appellant for the reason that the equipment was brought for demonstration purpose, obtaining permission from STPI. He submits that the terms and conditions of the entire contract between MTNL and the appellant and exporter with the appellant do not throw light that software was not developed. He also submits that the appellant has received foreign exchange for engagement in the maintenance of PAS system. Therefore, he submits that the appellant has a case for grant of benefit of notification cited above.
3. While hearing the Ld. DR we have noticed that the import appears to have been made following the agreements aforesaid. Terms and conditions of the agreement require examination in detail. We are concerned to know the reasons of stand of each other. This shall be well know from a date chart with list of evidence relied upon by both sides if submitted. When both sides are keen now for early disposal of appeal, we require dates relating to following:
1. Agreement with MTNL
2. Agreement with Foreign supplier
3. Different dates of extension
4. Date of purchase order by MTNL
5. Date of purchase order with foreign supplier
6. Details of Bills of Entry
7. Date of release of goods from Customs
8. Date of installation of equipment in MTNL
9. Period for which equipment worked in MTNL
10. Date of seizure
11. Date of SCN
12. Date of request to release the goods
13. Date of reply to SCN and date of PH
14. Date of order-in-original
15. Date of service of order-in-original
16. Date of filing of appeal before CESTAT
17. Date of stay order
18. Various dates of adjournments Ld. Counsel for the appellant UTStar Com. Inc.USA (UTSC) has also entered into appearance. He submits that in the meantime, the name of the appellant has undergone change but the authorities have not yet recorded the change. The Appellant Converges Labs shall file date chart by 15.5.09 with a copy to revenue. We make it clear to both sides that we have not expressed any opinion through aforesaid paragraphs on the merits of the case. Both sides are at liberty to argue on the matter after date chart comes to us. We have noticed from the record that after the stay order was passed on 9.9.05, this matter has reached for hearing on 20.11.08. On that day on the request of the Ld. Counsel, the matter was adjourned to 13.1.09. On 13.1.09, none appeared for the appellant, the matter was adjourned to 6.2.09 and on 6.2.09, both sides requested for adjournment. That was allowed to 5.3.09. On 5.3.09, the matter was adjourned to 15.4.09.
4. Ld. Counsel for the appellant U.T.Starcom Inc. USA(UTSC) submits that they prayed for adjournment. On that day a copy of the application was made which is on record that shall revive consideration.
5. Adjourned to 2.6.09 for which both sides present to take notice.
Order dictated in the open Court.
(D.N.Panda) Judicial Member (Rakesh Kumar) Member Technical km