Custom, Excise & Service Tax Tribunal
M/S. Adani Exports Ltd vs Commissioner Of Customs & Central ... on 15 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/22& 24/06, C/CO/158, 160, 157/06 [Arising out of Orders-in- Original No. 18/2005-AP. COMMISSIONER dated 31-10-2005 passed by the Commissioner of Customs & Central Excise, Panaji, Goa ] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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M/s. Adani Exports Ltd
Shri. Rajesh Adani
Shri. Saurin Shah
:
Appellant
VS
Commissioner of Customs & Central Excise, Panaji, Goa
:
Respondent
Appearance
Shri. Jitu Motwani, Advocate for the Appellants
Shri. M.K. Sarangi, Joint Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 15/11/2016
Date of decision 6/12/2016
ORDER NO.
Per : Raju
These appeals have filed by the M/s. Adani Exports Ltd, Shri. Rajesh Adani and Shri. Saurin Shah against order of the Commissioner denying the benefits of Notification No. 11/97-Cus dated 1-3-1997 to four title CD Roms imported by M/s. Adani Exports Ltd. Shri. Rajesh Adani and Shri. Saurin Shah are in appeal against penalties imposed on them under Section 112(a) and (b) of the Customs Act, 1962. Revenue has also filed cross objections.
2. Ld. Counsel argued that the appellant had imported 20 different title of CD. Revenue had granted them exemption under Notification No. 11/97-Cus on 16 out of 20 CDs and on 4 CDs listed below exemption was not granted:
(1) Gus Goes to the Kookly Carnival (2) The Madness of Roland (3) Kid Bytes(for grade schoolers 5-11) (4) Campaign Notification No. 11/97-Cus has amended by Notification No. 3/98-Cus exempting Computer Software from whole of duty of Customs and Additional Duty of Customs. The said Notification defines the Computer Software as follows:
Explanation. - `Computer soft- ware 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 falling under heading No. 84.71, but does not include software required for operation of any machine performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine Ld. Counsel argued that Revenue has asserted that these 4 titles of CDs are interactive in nature and therefore do not qualify exemption under exemption Notification No. 11/97-Cus as amended by Notification No. 3/98-Cus. Ld. Counsel further argued that sole basis of assumption that these titles do not figure in the list of titles which were held to be interactive in nature by department of Electronic, in response the reference made by Electronics and Computer Software Export Promotion Council. Ld. Counsel argued that this letter does not say that these 4 disputed titles are not interactive in nature.
2.1 Ld. Counsel produces certain literature from the internet about these disputed CDs.
2.1.1 Legendsworld.net Gus Goes to the Kooky Carnival: In Search of Rant from Modern Media Ventures is a children's game for ages five and up. In this game, kids explore the carnival looking for their animated buddies. As they do, their half of the ticket to the big top gets colored in, bit by bit. When they get the whole ticket colored in, Rant turns up with the other half of the ticket and they all get in to see the big top show. Along the way, kids get to explore and take part in activities designed to get their minds thinking and working. The games have three activity levels which can be adjusted as the children grows.
2.1.2 EducationMax.com Gus Goes to Kooky Carnival IN SEARCH OF RANT- Rant is hiding! Help Gus and the CyberBuds search for their hidden frined in this fun-filled learning adventure.
Kids and adults alike will have hours of fun exploring the zany environments of the Kooky Carnival which are jam packed with wacky click animations, lots of learning activities, and super fund games.
2.1.3 hyperbole.com The Madness of Roland The Worlds First Interactive Multimedia Novel Will Forever Change The Way You Look At Books.
Based on the legend of the Paladin Roland, a knight in the service of Charlemagne, the story is told from multiple points of view, which you can move among at will. Each character tells their own, often contrary, versions of the story, Roland uses text, digital color paintings, animation, Qucktime video, professional radio theater narration, hepertextual links and complete original soundtrack to transport you to the world of Charlemagnes France.
2.1.4 abandonia.com Campaign classic strategy game with a World War II setting. As a general, you take control of either the Allies or the Axis and lead them through several campaign from Africa to Russia. As a good general you will have to take care of all aspects of warfare: You will have to manage the production of your facilities, protect your air force bases and provide your troops with enough reinforcements, ammunition and fuel. Last, but not least, you will have to make sure that the opposing general wont be able to likewise.
Ld. Counsel argued that third title namely Kid Bytes is also of interactive CD and the same appears in Sr. No.16 of the letter of department of Electronic addressed to Electronics and Computer Software Export Promotion Council relied upon by the Revenue.
3. Ld. A.R. relied upon impugned order. He argued that it is a responsibility of the appellant to establish that they are entitle to the benefits of notification. He further argued that letter of the department of electronics addressed to Electronics and Computer Software Export Promotion Council, the samples were not forwarded by the Revenue to department of electronics but they were forwarded by appellant via Electronics and Computer Software Export Promotion Council.
4. We have gone through rivals submissions, we find that the only ground relied upon in the show cause notice and the adjudication order to hold that the said four titles are not interactive in nature, is that the same do not figure in the letter of department of electronics addressed to Electronics and Computer Software Export Promotion Council. We find that this is a insufficient ground. The letter of department of electronics referred to above was in respect 27 different titles and in respect of some imports, probably made in Bangalore. Absence of these titles in the said list does not make these titles non interactive. Further it is noted from the description of the CDs, as it appears in net, which has been produced by the Ld. Counsel and reproduced in Para 2 above that Sr. 1, 2 and 4 clearly interactive in nature. In respect of Sr. 3, it is apparent the said title is covered in the letter of department of electronics. In these circumstances, we find that the said titles are interactive in nature and therefore the appeal of M/s. Adani Exports Ltd is allowed. Since the Appeal of Adani Exports is allowed, penalties of two appellants are also set aside and their appeals are also allowed. COs also disposed of accordingly.
(Order pronounced in court on _____________ ) Ramesh Nair Member (Judicial) Raju Member (Technical) sk 2 C/22& 24/06