Customs, Excise and Gold Tribunal - Bangalore
Central Machine Tool Institute vs Cc on 4 October, 1999
Equivalent citations: 2000(93)ECR142(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. The appeal was dismissed on the premise that appellant is a PSU and that appellant was required to produce clearance certificate. Appellants now submit that they are not a PSU but a Society registered under Karnataka Society's Registration Act, which is managed by a Governing Council. Therefore they pray that order of dismissal of appeal be recalled and restored.
2. Heard Shri S.V. Shetty, Senior Administrative Officer for the appellants.
3. In view of the submissions made, the final order No. 1589/99 dt 30.6.1999 dismissing the appeal of the appellants is recalled and restored to its original number.
4. Ld. Representative of the appellants seeks for hearing the appeal today as he has come from Bangalore.
5. Ld. SDR has no objection.
6. Considered. With the consent of both sides, appeal is taken-up for hearing.
7. Appellants had imported software and claimed benefit of notification No. 70/81. At the time of clearance, appellants paid duty 'under protest'. However, later they filed refund application. The Asstt. Collector rejected their plea on the ground (of) eligibility of magnetic media under notfn. No. 70/81 was discussed in the Collectors' conference and the matter had been referred to DOE. Since no clearance (sic) (it should be clarification) was received from DOE, the claim could not be considered for refund. On this ground, he rejected the same. In the mean time, appellants contended that matter was persuaded with the Ministry and the Ministry had issued a clarification notification No. 276/90 dt. 15.11.1990 incorporating the amendment to the notification with the words "In the said notification, in the opening portion, after the word, "spare parts", the words "computer-software", shall be inserted." There is explanatory note which states "This notification seeks to exempt Computer Software fully from customs duty when imported by Research Institutions. Appellants submit that this notification was only clarification notification issued by Govt. of India and therefore the Commissioner (Appeals) ought to have allowed their appeal and rejection of their appeal on the ground that notification is not clarificatory is not correct.
8. Heard Ld. Representative of the appellants Shri S.V. Shetty, Sr. Administrative Officer and LD. SDR for Revenue.
9. Ld. SDR points out that the amendment has to be taken from the date of the notification and there are no indications that notification is having retrospective effect as terms "software" has been incorporated for the first time and the words "spare parts" appearing in the notification could not be considered as "computer software".
10. On a careful consideration of the submissions, we notice that Collectors' conference themselves had referred the matter to DOE in terms of order-in-original to seek clarification as to whether the term "spare parts" could be considered as "computer software". The Govt. of India after due consideration have issued amendment notification No. 276/90 which seeks to amend the notification No. 70/81-Cus. dt. 26.3.1981 and notification No. 229/88-Cus. dt. 1.8.1988 clarifying that "in the said notification, in the opening portion, after the word, "spare parts", the words "Computer-software", shall be inserted.", which is in respect of Notfn. No. 70/81. In respect of Notfn. No. 229/88-Cus., it was also clarified that "In the said notification, in the opening portion and in conditions (c) and (d) after the word "equipments", wherever it occurs, the words "computer-software", shall be inserted"
11. On a careful consideration, we notice from the explanation given therein to the fresh notification that intention was to grant exemption even to computer-software and the said notification which was implicit has been made explicit. It has been held in the case of CC v. Shaw Wallace as in that amendment notification which incorporates certain words was in the nature of clarification and what was implicit had been made explicit and the amendment was to remove the ambiguity in the earlier notification and where ambiguity is removed by further clarification, such notification has to be read as amending notification/clarificatory notification having retrospective effect. In view of this judgement, we hold that in the peculiar facts and circumstances of the case, the Govt. have clarified by amending the notification to incorporate 'computer-software' is also fully exempt from customs duty when imported by Research Institutions. This amendment notification shall have effect from the date of the original notification No. 70/81-Cus. dt. 26.3.1981 and 229/88-Cus. dt. 1.8.1988. Appellants had produced evidence that they are Research Institute which is not disputed.
12. Ld. representative submits that question of unjust enrichment in this case does not arise as the imported goods were captively consumed for the purpose of research. This point is not disputed by the authorities in the impugned orders and therefore taking into consideration the overall facts and circumstances of the case, and for the reasons recorded, the impugned order is set aside and appeal allowed with consequential relief as per law.
(Pronounced and dictated in open court).