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TMI Blog2018 (5) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction acquisition and reconciliation management for smart card based petro-card programs for ICICI Bank and Hindustan Petroleum Corporation Limited. They claimed that the imported software is specifically tailored, made as per customer's requirement for the above mentioned petro-card programs. He argued that as per Notification No. 6/2006-Central Excise dated 01.03.2006 entry no. 27, any "Customised Software" is exempted from levy of CVD. Therefore the importer claimed that the software imported by them should not attract levy of CVD. However at the time of import the benefit was not extended to the importer. The importer paid the duty under protest and requested for a speaking order so that they could appeal against the same. Subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of various customers across different industries/business segments/geographic locations/ functions etc. He argued that Revenue has mis-understood the imported customized software to be "Packaged" or "Canned" software under a wrong impression. The appellants had submitted all the information that they could to the learned Assistant Commissioner of Customs, in order to help him understand the nature of the imported software but he could not appreciate the same. Since the imported software was urgently required, the appellants paid the CVD under protest and cleared the imported software on payment of duty under protest vide their letter dated 14.07.2009. The concerned Dy. Commissioner of Customs, Gp. VB passed the Order-in-Original in total d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppliers have retained the source code etc. with them. 3. Learned AR relies in the impugned order. 4. We have gone through the rival submission, the impugned order as well as Order-in-Original relied in following assertion to hold that the software imported is "Packaged" or "Canned" software and not "Customised Software". (i) The supplier had retained all the interest software, patent copyright, trade mark and all other intellectual property rights. (ii) The importer does not have either source code. (iii) The imported has been granted nonexclusive right to said software. 5. We find that so far as the first and second issue are concerned, it is clear that in all the "Packaged Software" no rights such as copyright, trade mark or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomised Software" has not been examined with respect to exact nature of the software of imported. The importer is claiming the benefit of exemption Notification No. 6/2006-Central Excise dated 01.03.2006. In the appeal memorandum they have given various ground on which they have sought differentiate between "Packaged" software and "Customised Software". We do not find any examination of the said ground in the Order-in-Original or impugned order. In these circumstances, in the interest of justice, we set aside the impugned order and remand the matter to the original Adjudicating Authority to examination all the documents submitted by the appellant and give a clear finding on the "Customised" or "Packaged" nature of software depending of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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