GENISYS INTEGRATING SYSTEMS (I) PVT. LTD. Vs. CC

JUDGEMENT

(1.) THIS appeal arises from OIA No. 04/2003 -Cus dated 14.1.2003. The question that arises for consideration is as to whether electrical wires & cables, control panels and cubicle control panels indigenously procured by the appellants for use in 100% EOU located within the Software Technological Park would be eligible for excise duty exemption in thermos of Notification No. -CE dated 4.1.1995. Both the authorities have clearly noted that the items would come within the scope of expression "Capital Goods" as defined in the Notification. The goods being Capital Goods is also upheld by the Apex Court in the case of CCE, Coimbatore v. Jawahar Mills Ltd. 2001 (132) ELT 3 (SC). However, the authorities have held that the items have no connection for use in the development of software. Hence, the benefit of the said Notification has been denied. This is challenged by the appellants on the ground that the Commissioner himself, in the case of M/s. Infosys Technologies Ltd., by his OIA No. 112/2003 -Cus dated 10.03.2003 has clearly held that the items being Capital Goods they are eligible for the benefit of the Notification as they are exclusively used for software development in the light of the Apex Court judgment noted. It is stated that the Commissioner, having passed the order in the case of M/s. Infosys Technologies Ltd. on 10.3.2003, was bound to have passed a similar order in the appellant's own case also.

(2.) THE learned SDR points out that the present OIA was passed on 14.01.2003 earlier to the order passed in M/s. Infosys Technologies Ltd. case. He submits that better wisdom has dawned on the Commissioner (Appeals) at a later point of time while giving the order in the case of M/s. Infosys Technologies Ltd. Hence, the Tribunal should not draw any adverse inference as pressed by the Counsel in the light of the Karnataka High Court judgment in the case of Yellamma Dasappa v. CC, Bangalore, 2000 (12) ELT 67 (Kar.) and in the case of Microland Ltd. v. CC, Bangalore by Final Order No. 190/2005 dated 8.2.2005.

(3.) WE find that the subsequent view of the Commissioner is correct which has been accepted by the Department. There is no cause to draw any adverse inference on the Commissioner as better wisdom dawned on him at a later point of time while deciding the case of M/s. Infosys Technologies Ltd. The impugned order is set aside and the appeal allowed with consequential relief, if any.