TaxTMI 
TaxTMI 
2017 (11) TMI 1188
X X X X Extracts X X X X
X X X X Extracts X X X X
....he company. The aircraft first time was imported into India on 21.10.2007 at IGI, New Delhi by M/s. EIHL but the aircraft left on 27.11.2007 for FDR fitment required as per CAR Civil Aviation regulations. On 26.1.08 the aircraft returned after fitment at Mumbai Airport. As per another lease agreement entered into by FTL on 20.2.2008 the aircraft finally came at Mumbai and on 19.4.2008 the aircraft was imported by the appellant and duty was paid at Mumbai by FTL. 3. The department is of the view that duty is payable retrospectively w.e.f. 20.2.2008 when the lease agreement was entered into by M/s. Futura Travels for the aircraft. Accordingly, aircraft was confiscated and allowed redemption with redemption fine and penalty. The department also levied penalties on Shri Suresh Sundaram and Shri Sunil Bajaj, Directors. Being aggrieved, the present appeals have been filed. 4. It is the view of the department that date of 20.2.2008 must be substituted by 21.10.2007 when the aircraft came first time. So, department has also filed the cross appeals. 5. With this background, we have heard Shri S Vasudevan and Shri Govind Dixit, learned Counsels for the parties. 6. Shri Vasudevan, learned....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rospectively with effect from 21.10.07 is not demand. (iv) Alternatively, the learned Counsel submits that if the Customs duty is paid retrospectively, they will be entitled to draw back since the aircraft was subsequently sent out on 14.4.2008 as per the ratio of the law in the case of Sedco Forex Vs. CC Mumbai [2001 (135) ELT 625 (Tri-Mum)] as upheld by Apex Court in [2005 (179) ELT A 39 (SC)]. So he submits that if duty is paid retrospectively, the duty draw back will be entitled to the appellant and there would be no revenue gain. (v) Learned Counsel submits that appellant has been held liable to pay the duty when it entered into the final agreement on 20.2.2008. Aircraft was imported by FTL into India on 19.4.2008 and duty paid on 13.7.2008. Prior to that date the appellant did not import the aircraft. (vi) Learned Counsel further submits that by the impugned order, liability has been fixed jointly and severely as mentioned in the show cause notice. He submits that duty liability can be made only severely and not jointly. For this purpose, he relied on the ratio of JK Pharma Vs. CC Mumbai [2004 (166) ELT 407 (Tri-Mum)] as well as in the case of Chemicos Vs. CCE, Meerut [....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the basis of invoice recovered by Customs during investigation. Remittance details regarding this cost was provided by the appellant during the investigation. The cost of the fitments was over and above the invoice price of the Aircraft i.e. lease payment, which was not informed by the appellant to the Customs authorities with an intent to evade payment of Customs duty. In the show cause notice, the department has relied upon the CESTAT's decision in the case of Jagson International Ltd. Vs. Commissioner of Customs, New Delhi and the Supreme Court's decision in the case of Garden Silk Mills to demand customs duty on the impugned Aircraft from 21.10.2007 (when the Aircraft was first brought into India in the name of M/s. EIHL an Essar Group Company). (iii) The Show cause notice unambiguously brings out that the Essar Group, of which the M/s. Futura Travels Ltd. is a part, clearly intended to register the impugned Aircraft in India, which was a clear cut violation of Rule 58(6) (a) of the Aircraft Rules. Accordingly, the show cause notice was issued to demand Customs duty under Section 28(4) of the Customs Act, 1962, confiscation of the Aircraft under section 111(m) and 111(o) of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Corporation. 20.02.2008 FTL enters into a long term lease agreement with Cessna for the Aircraft 14.04.2008 Aircraft sent out of India to Tehran by EIHL 16.04.2008 Request by EIHL to Addl Commissioner, IGI, New Delhi to cancel surety bond 19.04.2008 Aircraft imported by FTL through Mumbai 22.04.2008 Surety bond submitted to Addl. Commissioner, IGI Airport, New Delhi 12.07.2008 Aircraft sent to Muscat 13.07.2008 Aircraft brought back to India 26.07.2008 Bill of entry filed by FTL at Mumbai 07.11.2008 NSOP No. 30/2008 granted to FTL 11. From the sequence of events as above, it is evident that the initial import of the aircraft was by EIHL on 21.10.2007 at Delhi. The aircraft was allowed to be imported in terms of Rule 58(6) of the Aircraft Rules which provide for import without payment of customs duty for a period up to 6 months in cases where there is no intention to register the aircraft in India. The claim of the appellant is that the surety bond executed at the time of this import was cancelled on 16.4.2008 after the aircraft was sent out to Tehran on14.4.2008. Since the aircraft imported under Rule 56 (^6) of Aircraft Rules stands exported, there is no ground....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... no justification to order confiscation of the aircraft and demand of customs duty from EIHL. 16. The impugned order has demanded the customs duty on the aircraft jointly and severally from EIHL as well as FTL. FTL, appellant, has argued that demand cannot be made jointly and severally against FTL and EIHL. We agree with this contention in the light of the case laws cited, Customs duty can only be demanded from the person liable to pay the same. 17. FTL's further contention is that the import of the aircraft by them was at Mumbai on 19.4.2008. The earlier import of the aircraft was not by FTL but by a different legal entity., EIHL. For such import at Mumbai, only the Commissioner (Customs) Mumbai has the jurisdiction to adjudicate any issues connected thereon. Since the SCN in the present case has been issued by Commissioner Customs, New Delhi, it has been submitted that the impugned order has been passed without restriction. 18. We find considerable force in the contention raised by FTL. FTL and EIHL are 2 different legal entities. Even if the same individual person signs as the authorised signatory of both the companies, the acts are by two different legal persons. Consequentl....