2021 (7) TMI 1027 - AT - Customs

Customs Act Appeal Outcome: Penalty set aside, exemptions denied, penalties upheld for mis-declarations

M/s. Interglobe Aviation Ltd Versus C. C-The Principal Commissioner Customs Bangalore

The appeal in the case was partly allowed. The penalty under Section 114AA of the Customs Act, 1962, was set aside, while other conclusions, such as the ... Classification of imported goods - aircraft engine along with engine stand as parts of aircraft - goods imported into the country or shifted from Delhi to Bangalore? - to be classified under CTH 8803 30 00 or would be CTH 8411 12 00 for Aircraft Engine and CTH 7326 19 90 for Engine Stand - applicability of Sl. No. 346D of Notification No. 21/2002-Cus., dated 01.03.2002 / Sl. No. 454 of Notification No. 12/2012-Cus., dated 17.03.2012 or otherwise? - sustenance of demand without reviewing/challenging the assessment in the Bills of Entry - extended period of limitation - penalties - interest - confiscation of goods. Whether the goods are to be treated as imported into the country or shifted from Delhi to Bangalore as claimed by the appellants?. If so, whether they are eligible for the benefit of notification no. 94/96- Cus dated 16.12.1996? - HELD THAT:- In order to avail the benefit under any notification, the appellants are required to establish the bona fides by following the proper procedure; there was no reason as to why the goods were not declared to be for re-import purposes at the time of loading in Delhi; the appellants would have given proper intimation/declaration to the department so that the department could have carried out the necessary examination/investigation. The facts of the case do clearly indicate that the appellants have filed a shipping bill while loading the goods at Delhi; at the time of movement from Germany to Bangalore and have also filed a bill of entry at Bangalore without making any reference to the intent of re-import etc. - there are no hesitation whatsoever to hold that the impugned goods are not eligible for exemption contained in terms of notification 94/96. Whether the impugned goods be treated as 'parts of aircraft' and whether the appellants claim of benefit of exemption under notification no. 21/2002-Cus dated 01.03.2002(S1.No.346D) and notification No. 12/2012-cus dated 17.03. 2012 (SI. No. 354) is proper? - HELD THAT:- The learned commissioner has correctly held that the impugned goods i.e. 'aircraft engines' and 'engine stands' are not eligible for the benefit of Customs Notifications No.21/2002-Cus dated 01.03.2002 (Sl. No.346D) and No.12/2012 dated 17.3.2012 (Sl.No.454) and Central Excise Notifications No.6/2006-CE dated 01.03.2006 (Sl. No.545) and Notification No.12/2012-CE dated 17.3.2012 (Sl.No.303) and Notifications No. 20/2006-Cus dated 1.3.2006 (Sl. No.1) and 21/2012-Cus dated 17.3.2012 (Sl. No.1) for the purposes of SAD. The appellants have relied upon Circular bearing D.O.F. No. 334/15/2014-TRU dated 10.07.2014 which clarified that “aircraft engines and parts thereof” are eligible for customs duty exemption under Sl. No. 454 of Notification No.12/2012-Cus, dated 17.03.2012 when imported for servicing, repair or maintenance of aircrafts used for scheduled operations subject to fulfillment of conditions specified therein - the clarifications given under Annexure-III Customs states that Representations have been received regarding the eligibility of aircraft engines and parts thereof for customs duty exemption under Sl.No.454 of notification No.12/2012-Customs, dated 17th March, 2012. It is clarified that aircraft engines and parts thereof are eligible for customs duty exemption when imported for servicing, repair or maintenance of aircrafts used for scheduled operations subject to fulfillment of conditions specified therein. There is no mention either in the notification or in the clarification that it will be effective retrospectively. In the absence of the same, it is to be understood that the changes made in the Notification No.12/2012-Customs dated 17th March, 2012 would only be prospective. Whether the demand can be sustained without reviewing/challenging the assessment in the Bills of Entry? - HELD THAT:- The appellants have relied upon the recent decision of Hon’ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT]. We find that the issue for consideration before Apex Court was about refund and in this context, Hon’ble Apex Court has observed that in terms of the provisions of Section 27 read with Section 17 of the Customs Act, 1962, no refund claim is maintainable unless the order of assessment is challenged - the Apex Court has not, anywhere in the order, observed that for issuing a demand under Section 28, the assessment order needs to be challenged under the provisions of Section 128. Thus, in view of the provisions of Section 17 and Section 28 of the Customs Act, 1962, the demand issued is in order. Whether in the facts and circumstances of the case, invocation of extended period of limitation interest, and imposition of penalties under Sections 112, 114A and 114AA of the Customs Act, 1962, justified? - HELD THAT:- The bills of entry were self-assessed and were cleared under RMS. Under the circumstances, it cannot be alleged that the Department was in the knowledge of the various declarations made by the appellants and thus, charge of mis-declaration cannot be levelled. Looking into the facts and circumstances of the case, it is found that the appellants have mis-declared the impugned goods and have wrongly availed the benefit of exemption which is not due to them. Under the circumstances, it is found that extended period is correctly invoked - The present case does not relate to export at all and even for imports, all the documents presented for imports were genuine and not forged and thus penalty is not imposable under Section 114AA of the Customs Act, 1962, penalty under other sections upheld - demand of interest also upheld. Confiscation of goods - HELD THAT:- The Adjudicating Authority simply held that the goods are liable for confiscation; he did not confiscate the goods and he did not impose any fine in lieu of confiscation. Therefore, the order of mere holding the goods liable for confiscation is of no consequence, need not be interfered with. Appeal allowed in part. Issues Involved:1. Whether the goods are to be treated as imported into the country or shifted from Delhi to Bangalore.2. Whether the impugned goods can be treated as 'parts of aircraft' and whether the appellants' claim of benefit of exemption under specific notifications is proper.3. Whether the demand can be sustained without reviewing/challenging the assessment in the Bills of Entry.4. Whether the invocation of the extended period of limitation and imposition of penalties under Sections 112, 114A, and 114AA of the Customs Act, 1962, is justified.Issue-wise Detailed Analysis:1. Re-import vs. Domestic Transfer:The appellants claimed that the goods were merely shifted from Delhi to Bangalore and did not enter German Customs. However, the adjudicating authority held that the goods were re-imported into India as they were taken out of the country and then brought back. The authority emphasized that the intention to re-import was not declared at the time of export, and the goods were not examined by the competent authority. Thus, the benefit under Notification No. 94/96-Cus dated 16.12.1996 was denied.2. Classification and Exemption of Goods:The appellants argued that the aircraft engines and stands should be classified as 'parts of aircraft' under CTH 8803 and are eligible for exemption under Notification No. 21/2002-Cus and Notification No. 12/2012-Cus. They cited various case laws and a CBEC circular to support their claim. However, the adjudicating authority held that the goods are not classifiable as 'parts of aircraft' due to exclusion under Section Note 2(e) to Section XVII. The authority found that the legislative history and the specific wording of the notifications indicate that 'aircraft engines' are distinct from 'parts of aircraft' and thus not eligible for the claimed exemptions.3. Assessment in Bills of Entry:The appellants contended that the demand cannot be sustained as the assessment in the Bills of Entry was not challenged. They relied on the Supreme Court's decision in ITC Ltd Vs CCE, Kolkata-IV. However, the adjudicating authority distinguished this case, noting that the issue before the Supreme Court was related to refund claims, not demand under Section 28. The authority held that the demand was valid as per the provisions of Section 17 and Section 28 of the Customs Act, 1962.4. Extended Period of Limitation and Penalties:The appellants argued that there was no suppression or misrepresentation of facts, and mere claiming of an exemption based on a bona fide belief does not amount to mis-declaration. However, the adjudicating authority found that the appellants made mis-declarations and claimed incorrect exemptions, justifying the invocation of the extended period of limitation. The authority upheld the penalties under Sections 112 and 114A but set aside the penalty under Section 114AA, as the case did not involve export with forged documents.Conclusion:The appeal was partly allowed by setting aside the penalty under Section 114AA of the Customs Act, 1962, while upholding the other conclusions, including the denial of exemptions and the imposition of other penalties and interest.