Customs, Excise and Gold Tribunal - Delhi
Padmini Polymers Ltd. vs Commissioner Of Customs on 31 May, 2006
ORDER
S.S. Kang, Vice-President
1. We have heard the learned JDR as no one appeared on behalf of the appellants.
2. The appellants filed this appeal against the adjudication order passed by the Commissioner (Adjudication). The goods imported by the appellants were confiscated on the ground of misdeclaration.
3. The appellants made import of certain goods and in the bill of entry, the same are declared as Multimedia Application Software on CD ROM and claimed the benefit of Notification No. 11/97-Cus., dated 1-4-997 as amended by Notification No. 23/98-Cus., dated 28-6-1998 which provides exemption from payment of customs duty to Information Technology Software. The adjudicating authority held that the goods in question which were confiscated were not covered under the scope of Information Technology Software.
4. The contention of the appellants in the appeal memo is that interactivity of software only require ability to communicate with the computer by means of terminal. As such, the goods in question are capable of communication with the computers by means of terminal. Therefore, the confiscation is not sustainable. The contention that inter-activity does not imply user intervention during the course of process of running the programme. In fact, the software imported by the appellants is capable of being operated using by a terminal which was sufficient to constitute inter-activity.
5. The learned DR relied on the explanation provided under Notification. As per the explanation, the contention is that the software must be capable of being or providing inter-connectivity to the user by means of an automatic data machine. The goods in question are software in nature of programe whereas user inter-activity during the course of such process is not required except for programming the same. Therefore, inter-activity is not involved.
6. We find that in this case, the appellants are challenging the confiscation of goods imported by them. The appellants claim the benefit of Notification which provides exemption from payment of customs duty to information and technology software. As per the explanation provided in the notification, 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 inter-activity to user, by means of an automatic data processing machine. There is a finding in the impugned order in respect of the goods in question that no inter-activity is involved. This finding is challenged in the present appeal only on the ground that the software has ability to communicate with the computer by means of terminal. We find that interactivity means that user can communicate with the computer while the programme is running in order to locate the particular information. In the present case, there is no evidence on record to show that the user can manipulate the data while the programme is running in order to locate a particular information. The goods in question such as CD ROM is Cinderalla which is a story and other is a USA Cook Book. In the absence of any evidence that these are inter-active, therefore, are not entitled for the benefit of this notification. We find no merit in the appeal. The appeals are dismissed.
(Order dictated and pronounced in the open Court on 31-5-06)