Full Judgment
2. The appellants imported goods described as computer software (control channel module upgrade on floppy) claiming benefit of entry at Sr. No. 173 to Notfn. No. 11/97- Cus., dated 1.3.97. The Asstt.
Commissioner of Customs referred to certain instructions of the Board clarifying the term "computer software" and observed that this entry would not cover software required for any machine performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine. He ruled that the contested goods did not conform to this trust. He denied the exemption and confirmed the differential duty payable. Before the Commissioner (Appeals), the counsel appearing for the appellants made a specific statement to the effect that the software although meant for telecommunication equipment, was indeed a computer software. He also advanced the argument that the instruction of the Ministry dated 10.2.98 could not be given retrospective effect for covering the consignment imported by them on 6.1.99. The Ld. Commissioner went into the argument of retrospective application but did not discuss the claim that the import was computer software. On his confirming the lower order, the present appeal is before us.
3. Shri Swaminathan first argued on the retrospective application of the Board's instruction. He also showed us the citation of the Tribunal judgment in the case of Usha Martin Telecom Limited v. CC . In this order on the stay application, the Tribunal discussed the subsequent Notification No. 3/98 and held that it could not be given retrospective application. Shri Swaminathan submits that this was an identical issue before the Tribunal.
4. We have seen this judgment and we have also seen the order of the lower authority in analysing the retrospective applicability. In our opinion, the entire issue is extraneous to the main issue at this case interpreting the term "computer software." According to us, this would cover to interpret on their own "software" which is used in computer "data processing machine". The interpretation of the Board was the same thing and in doing so attempted to put a broad construction on this term. This construction of the term has been interpreted in the body of the later notification amending the first Notification No. 11/97.
5. At all times, Shri Swaminathan claimed that this was computer software. He submits that where certain operations are undertaken in telecommunication, the computer provides a component thereof. Certain instructions are passed by the computer to the telecommunication machines. Similarly, operating signals are interpreted by the computer.
If that is the situation and if the present software is used in the operation of the computer for receiving, sending and interpreting those signals, then it would appear that the software would satisfy the terminology "computer software" used in Notification No. 11/97.
6. Shri Swaminathan submits that he would be able to show the Commissioner that this particular software imported was "computer software" as per our observation above. To enable the assessee to do so, we allow the appeal and set aside the impugned order and remand the proceeding back to the jurisdictional Asstt. Commissioner who will if necessary seek the technical assistance from the appropriate authorities. He shall give adequate opportunities to the assessee to demonstrate and then pass a well reasoned order. Stay application also stands disposed of.