2014 (2) TMI 18

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....K. Raha, Counsel JUDGEMENT Per Justice G. Raghuram: The appellant imported aircrafts approved by DGCA for providing non-scheduled passengers service. The imported aircraft were however used for non-scheduled charter services. Customs duty exemption was availed on the import of aircraft in terms of General Exemption Notification No.21/2002, as amended by Notification No.61/2007. 2. Proceedings were initiated by Customs authorities for recovery of duty, interest and penalties on the ground that conditions of the exemption. Notification were transgressed. According to Revenue, the user of aircrafts imported for use for non-scheduled passenger services as non-scheduled charter services, amounts to transgression of condition No.104 o....

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.... King Rotors & Air Charter, at paragraphs 24.18 and 24.19 of the order proceeded on an independent interpretation of Notification No.21/2002-Cus. as amended by Notification No.61/2007-Cus. and concluded that though the factum of undertaking takes place at the time of importation, the subjects of undertaking are things of the future. The undertaking requires that the imported aircraft shall be used only for providing non-scheduled passenger services and not for non-scheduled charter services. The second condition of the undertaking is that the duty of customs should be paid on demand by the importer in the event of failure to use the aircraft for the specified purpose. In King Rotors & Air Charter violation of the conditions of import took p....

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....o noticed provisions of the DGFT Notification No. 2(RE-2006)/2004-2009, dated 7.4.06 and thereafter the scope of the exemption Notification. In the circumstances, the interpretation of the exemption Notification in Sameer Gehlot could not be charactertised per incuriam. For the nonce, suffice it to observe, prima facie, on established principles of per incuriam, that the decision in Sameer Gehlot was not per incuriam. 7. Undisputedly, interpretation of the relevant Notifications in Sameer Gehlot and in King Rotors & Air Charter are diametrically in conflict. Ld. Counsel for the appellants herein and the ld. A.R. for respondent/Revenue are in unison in submitting that the decision in Sameer Gehlot and in King Rotors and Air Charter as wel....