TMI Blog2010 (6) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... the question as to whether the impugned 'Telecom software' is eligible for exemption as 'Computer Software' or not. T - C/347/2005-Cus.(BR) - C/108/2010(PB) - Dated:- 29-6-2010 - Dr. Chittaranjan Satapathy, Member (T) and Shri Ashok Jindal, Member (J) REPRESENTED BY : Shri P.K. Bakshi, Advocate, for the Appellant. Shri Sumit Kumar, DR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. - Heard both sides. 2. The dispute in this case relates to entitlement of the impugned goods imported by the Appellants to exemption under Notification No. 11/97, dated 1-3-1997 granted to "Computer Software" vide Serial No. 173. Initially, there was no definition of Computer Software in the said Notification but an explanation defining "Computer Software" was inserted under the said Notification by amending Notification No. 3/98, dated 11-2-1998. The explanation reads as under :- "Explanation : "Computer 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 interactivity to a user, by means of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch. Accordingly, the Registry is directed to place the records before the Hon'ble President to constitute a Larger Bench to decide on the following issue. Whether 'explanation' added by Notification No. 3/98-Cus., dated 11-2-98 to the entry at S. No. 173 of the table annexed to Notification No. 11/97-Cus., dated 1-3-97 is clarificatory of the expression 'computer software' so as to have retrospective effect from 1-3-1997." 6. We find that the Larger Bench which heard the reference not only decided the reference holding that the explanation cannot be given retrospective effect but also proceeded to decide the appeal itself holding that the 'Telecom software' imported by the respondents in that case was entitled to exemption under the impugned Notification as 'Computer Software'. We are of the considered opinion that since the Larger Bench has not only decided that the amendment is not retrospective but also that 'Telecom software' is 'computer software' by dismissing the appeal of the Revenue, there is no scope for us in this case to go into the question as to whether the impugned 'Telecom software' is eligible for exemption as 'Computer Software' or not. The learned DR is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness parlance 'Telecommunication Software' 'Computer Software' are two different distinct items. 7. Reference is made to World Book Encyclopedia, Volume 19 published by World Book, Inc pages 100-103 and pages 252-267 to distinguish between the two (Telecommunication equipment using 'Telecom Software' and Data Processing Computer using 'Computer Software'). 8. Further reference is made to 'the free 'dictionary.com' relying on American Heritage Dictionary, 4th Edition, 2000, Published by Houghton Muffin Company that define 'Software'. The term is defined in the context of Computer Science as 'the programs that control the functioning of the hardware and direct its operation' 9. While the 'Telecom Software' as explained in Wikipedia is for 'encoding the information as a set of discrete values over the network'. 10. Reference is also made to the Encyclopedia of Electronics, 2nd Edition, published by TAB Books which on page 835 clearly states that 'Telecommunication covers all forms of electrical or electronic communication'. Most humbly this is completely different from the task performed by data processing machines using computer software. 11. Reference is also made to The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /98-Cus., dated 11-2-98 to the entry at Serial number 173 of the Table annexed to Notification number 11/97-Cus., dated 1-3-1997 is clarificatory of the expression 'computer software' so as to have retrospective effect from 1-3-1997? 17. Most respectfully this question of retrospective application is NOT before the Bench in the present case and therefore the question of ratio being applicable does NOT arise. 18. Further the term 'Computer Software' even without the aid of the 'Explanation' is NOT 'Telecom Software' and this question of fact cannot be decided on the basis of ratio of the LB decision related to retrospective application of the 'Explanation' to the Notification. 19. Further the reference Bench jurisdiction is limited to deciding the question of law referred to it by the Hon'ble President and decision itself is left to be taken by the original Division Bench. Most humbly an error of law has been committed by the Large Bench in going beyond the reference jurisdiction and deciding the appeal itself. The decision in the appeal being beyond the jurisdiction of the Large Bench is therefore most respectfully void in eyes of law, a nullity for the present Bench. Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l precedents do not come into the expression 'law in force'. It held that the rule that a court should follow the decision of another court of coordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmonds Jurisprudence, 11th edition at pages 199 to 217. And one of the exceptions is a precedent rendered in ignorance of a statute or a rule having the force of statute. 25.The decisions of the Apex Court on what constitutes a precedent are summarized as under : (A) As held in Zee Tele Films Limited v. UOI, AIR 2006 SC 2677, a decision is not an authority for the proposition which does not fall for its consideration. (B) Also it is trite law that a point not raised before a court would not be an authority on the said question of law as held in State of Gujarat v. Akhil Gujarat Parvasi v. Mahamandal, AIR 2004 SC 3894 (C) The Hon'ble Apex Court in Madhav Rao Scindia v. UOI, AIR 1971 SC 530, held that it was not proper to regard a word, a clause or a sentence occurring in a judgment of the SC, divorced from its context, as containing a full exposition of the law on a question, when the question did not even fall to be answered i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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