TaxTMI 
TaxTMI 
2023 (3) TMI 304
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....sed by the Customs Excise and Service Tax Appellate Tribunal (hereafter 'the Tribunal') in Customs Appeal No. 57/2010. 2. The respondent had filed the aforementioned appeal (Customs Appeal No. 57/2010) impugning an order-in-original dated 20.11.2009, whereby the Adjudicating Authority (Commissioner of Customs) had raised a demand of Rs.6,22,67,295/- (Rupees six crores twenty two lacs sixty seven thousand two hundred and ninety five) and further imposed a penalty of Rs.3,00,00,000/- (Rupees three crores) under Section 112 of the Customs Act, 1962 (hereafter 'the Customs Act'). In addition, the Commissioner also directed confiscation of the aircraft imported by the respondent (hereafter 'the aircraft') under Section 111(o) of the Customs A....
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.... in rule 3(9) of the Aircraft Rules and is other than scheduled (passenger) air transport service defined in rule 3(49), it would be a NSOP (passenger) services within the meaning of clause (b) of the Explanation to Condition No. 104 of the exemption notification. These two conditions are satisfied by the importers, inasmuch as: - a. The contention of the department that the appellants have rendered "air transport service" to their group companies by carrying personnel of their group companies is not of any relevance as there is no prohibition in the said definition against any kind of persons to be transported; b. There is no stipulation or restriction or a condition in the definition that a tariff should be published or ....
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....y the aircraft imported as a private aircraft. Personnel of companies which are group companies of the importers are also members of public. The aircraft is, therefore, available for use by the public. Even otherwise, this cannot be a reason to hold that the air transport service provided would fall outside the scope of non-scheduled (passenger) service; (v) The Customs Authority cannot examine the validity of the permission granted by the DGCA in absence of cancellation of the permit by the DGCA and it is the DGCA alone that can monitor the compliance of the conditions imposed; (vi) The Customs Authorities can take action on the basis of the undertaking submitted by the importer only when the DGCA holds that the condition....
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.... 5. Insofar as the first question is concerned, the same is covered in favour of the Revenue and against the assessee by a recent decision of this Court in East India Hotels Ltd. v. Commissioner of Customs, Central Excise and Central GST, New Delhi in CUSAA 5/2020, decided on 31.01.2023. The question whether an undertaking, as furnished in terms of Condition 104 of the Notification in question is complied with or not is required to be considered by the Custom Authorities. The Custom Authorities are not bound by the decision of the DGCA. 6. The other questions relate to whether the respondent had complied with Condition 104 of the Notification and had used the aircraft for providing non-scheduled (passenger) services. The said question ....