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The IT software runs on the platform created by the System Software. IT software is an intermediary between the end-user and System Software. One can install multiple IT Software on a System Software. The examples for IT Software are MS Office, Photoshop, ICES etc. Therefore, in view of the above, it can be concluded ST/87120/2016 that the impugned item is System Software which is a general purpose software and essential for operating any computer and can be bought and used by anyone. Anyone buying a computer has to buy and install an operating system on it whether by himself or he has to buy a computer with operating system pre-installed on it by the OEM. In the second case cost of the computer includes the cost of the operating system. Without operating system, the computer is just a piece of hardware with no use. Therefore, to make it serviceable, operating system needs to be installed on it whereas, and IT software is not mandatory for operation of a computer but is a special purpose software meant for performing some limited to specific task.' (emphasis supplied) The first appellate authority, on taking this finding into consideration along with the submissions of the appellant, held that '13. In this case, I observe that apparently, the importers of imported 500 numbers of so called software "WIN PRO 10 64 BIT ENG INTL 1 PK DSP OEI DVD", which, as imported, is in retail packing which can be sold off the shelf either to the individual or to the OEM with a key password and the same cannot be modified/altered in any manner and is Operating Software/Canned Software/Packaged Software. The Operating systems software manages computer hardware, software resources and provides common services for computer programs. What has been imported in this case is nothing but Operational Software/Canned/ Packaged Software with PUK (Personal Unlocking Key) conveying the right to use the software, without transferring the title of the goods/without the Source Code and not an IT Software with a source code/transferring the title/ownership of the goods. The ST/87120/2016 amount paid or payable is nothing but a license fee and not a price for the title/owning of the IT Software. Hence, I find that the additional submissions made relying on the case law quoted by the appellant in respect of their own case (Ingram Micro India Ltd V/s Commissioner of Customs, Air Cargo, Chennai (2018 (364) ELT 128 (Tri. Chennai) is different and not relevant to the present issue. The wordings used at S. No. 298 of Notification No. 050/2017-Cus dated 30.6.2017 is crystal clear i.e. (i) Information Technology Software sold along with the object code/source code (not a packaged software/canned software/OS) and (ii) Documents of title conveying the right to use Information Technology Software (not a PUK conveying the right to use IT Software). I also find that for the purpose of levy of IGST, the importers are claiming the IGST S. No. III-382 which reads as "Disc, tapes, solid-state non-volatile storage devices, smart cards and other media for the recording of the sound or of other phenomena, whether or not recorded, including matrices and masters for the production of discs, but excluding products of Chapter 37). Thus, in view of the aforesaid discussions and also the IGST entry claimed (III/382) I hold that the impugned goods are not an IT software to be classified under CTH eight 523.80.20 and are not eligible for the benefit of Notification No. 050/2017-Cus (S. No. 298) dated 30.6.2017 and a correctly classifiable under CTH 8523.80.90 (Others).

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16. Even if the argument of the appellant that the imported software is an Information Technology Software, is considered, the S. NO. 298 of Notification No. 050/2017-Cus dated 30.06.2017 categorically exempts (i) those Information Technology Software which has been imported along with the object code and source code or (ii) documents of title conveying the right to use information Technology Software. Here in this case, what has been imported a software obviously without source code and the payment involved in the case is only towards the fee for usage (PUK). Further, the goods are not a document which transfers the title of (ownership) of the goods. Hence, the case laws quoted by the importer is not applicable to the present case.'

7. It is also implied in the findings that 'software packages' are either those that can be modified/manipulated by the user or those that cannot be with the latter being 'operating software/canned software/packaged software' in contradistinction with 'information technology software' characterized by the former. This dichotomy appears to have been contrived by the lower authorities to find fitment with determination to subject the impugned goods to duty by falling back on 'Explanation.- "Information Technology software" means any representation of instructions, data, sound more 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.' below the description of goods eligible for exemption in notification ST/87120/2016 no. 50/2017-Cus dated 30th June 2017 and flagging the essentiality of 'source code and object code' for rendering it amenable to manipulation and interactivity to distinguish 'customized software' from 'packaged/canned software', within the meaning assigned to them in circular no. 81/2/2005-ST dated 7th October 2005 of Government of India in Department of Revenue, as the only distinction between software eligible for exemption and others. In the process, the lower authorities appear to have lost sight of the significance of Explanatory Notes to Finance Act, 2009 which, with reference to the taxability under Finance Act, 1994, exempted 'packaged or canned software' from so much of the additional duty of customs as is equal to the duty payable on the portion of the value which represents the consideration paid or payable for transfer of the right to use such software that is chargeable to tax as 'information technology software service' and, thereby, including 'packaged or canned software' too within the coverage of 'information technology software' contrary to the proposition of the lower authorities. Notification no. 80/2009-Customs dated 7th July 2009 makes the lack of distinction between the two as covered by 'information technology software' further abundantly clear. The attempt to, thus, exclude 'packaged or canned software' by adopting a position contrary to that of the Government of India does not sit well with obligation of officials subordinate to it.

13. However, before parting with this matter, we would be less than diligent in not disposing one aspect of the meaning assigned to 'information technology software' in the supplementary note in chapter 85 of First Schedule to Customs Tariff Act, 1975, viz, the arrangement of the expressions therein and, more particularly, of 'including source code and object code' preceded and succeeded by punctuating commas. Common usage of the language would lead us to the conclusion that it is a clause intended to ensure that presence of 'source code and object code', even if not covered by the preceding 'representation of instructions, data, sound or image' for any reason ST/87120/2016 whatsoever, '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' would, yet, be 'information technology software'; non-existence of such 'source code and object code' will not detract the package from being 'information technology software' intended by tariff item 8523 8020 of First Schedule to Customs Tariff Act, 1975. The position of the phrase precludes the interpretation of convenience adopted by lower authorities that the 'representation of instructions, data, sound or image' must include 'source code and object code' for it to so qualify. Strange as the English language may appear, the deployment of the parts of speech and punctuation marks makes for sensible syntax in accordance with long established rules of grammar. At times, the work of late Mr PC Wren suffices for clarification that tomes may fail to. A verb in a sentence addresses the activity of the subject and a preposition in a sentence is a word placed before a noun, or noun phrase, to show in what relation the person or thing denoted stands in regard to something else; thus the verb 'include' assigns a principal role to the subject and activity while the preposition 'including' depicts a subordinate role in the arrangement of a sentence and, if used interchangeably, can wreak havoc in communication - oral and written. In our view, no further elaboration is called for.