TaxTMI 
TaxTMI 
2024 (7) TMI 1079
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....s Tariff Item (CTI) 8802 12 00 of the First Schedule to the Customs Tariff Act, 1975 and have availed exemption from Basic Customs Duty (BCD) under Serial No. 347B of the Notification No.21/2002-Customs dated 01.03.2002 as amended; exemption from Additional Duty of Customs (CVD) vide Sl. No. 54E of Notification No. 06/2006-C.E. dated 01.03.2002 as amended and exemption from Special Additional Duty of Customs (SAD) under Sl. No.1 of Notification No. 20/2006-Customs dated 01.03.2006. In support of their claim for availing exemption from import duties, the appellants had produced a 'No Objection Certificate' (NOC) issued by the Director General of Civil Aviation dated 15.10.2007 with DGCA Permit No.01/2003 dated 02.09.2003 where under the appellants importer was authorized to import the said helicopter for the purpose of operating and providing for Non-Scheduled Air Transport Services (Passenger). The appellants importer also submitted an undertaking in accordance with the condition of exemption under Sl. No. 104 of Notification No.21/2002-Customs dated 01.03.2002 read with Notification No. 61/2007-Customs dated 03.05.2007, whereby they had undertaken that the said helicopter wo....
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....2. 3.2. Learned Advocate further submitted that the issues covered in the present appeal is no more under dispute as these have been addressed by the Larger Bench of the Tribunal in the case of VRL Logistics Limited Vs. Commissioner of Customs, Ahmedabad - (2023) 3 Centax 168 (Tri.-LB), wherein the appellants have also represented as one of the intervenor. Miscellaneous application No.85078 of 2022 filed to this effect was allowed by the Larger Bench of the Tribunal in its Miscellaneous order dated 28.01.2022. He submitted that the Larger Bench had answered the issues in dispute in favour of the appellants/importer and held that the customs duty exemption will continue to be available to aircraft/helicopter imported by a Non- Scheduled Operator-Passenger (NSOP) permit holder for passenger services even when the same is used for providing charter services. Further, he stated that on the above basis, the respective Division Benches of the Tribunal have also decided the appeals in favour of the importers. 3.3 Without prejudice to the above, learned Advocate submitted that the entire demand of customs duty is barred by limitation, as the SCN was issued for demand of duty on....
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....much as the helicopter was used by just two users, the appellants having contravened the conditions that the imported helicopter is used only for NSOP purpose. Further, he stated that there was no published tariff available and no tickets were issued, by the appellants; the hirer companies were operating the helicopter by providing charter services to other parties and associated companies and the appellants had no control over the services. Hence he claimed that the appellants importer had not fulfilled the customs duty exemption conditions as provided in the explanation in Sl. No.104, relevant to the entry at Sl. No. 347B of Notification No.21/2002-Customs dated 01.03.2022 and therefore the impugned order has rightly confirmed the duties and confiscated the goods besides imposition of penalty on the appellants. 4.2 Learned Special Counsel further submitted that the undertaking given by the appellants in respect of imported goods was valid at the time of importation and for availment of exemption notification, which was cancelled only after the appellant submitted the end user certificate as required under the law. However, on detailed investigation the said end use certi....
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....llowed it on payment of redemption fine of Rs.10,00,000/-; besides imposed penalty of Rs.2,50,000/- each on the appellants and on its Managing Director under Section 112 of the Customs Act, 1962 on the basis of following findings in the impugned order. The relevant paragraphs of the impugned order are extracted below: "21. It is an accepted fact that the helicopter imported by UHPL is completely placed at the disposal of HCPL on charter-hire basis. There is no published tariff (refer Explanation under 104 of Notification 21/2002-Cus). The helicopter is not available for use by any other party. They are not issuing tickets (refer para 10.7 of CAR, Series C Part V). 22. Against the above facts, it is to be decided whether UHPL is operating non-scheduled (passenger) services as envisaged in condition No.104 of Notification 21/2002-Cus.... 23. Indian Air Craft Rules, 1937 does not define 'Non-scheduled (passenger) services'. This expression is defined in the Civil Aviation Requirements for 'Non-scheduled (passenger) services. As per this definition, Non-scheduled (passenger) services means air transport services other than "scheduled passenger air tra....
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.... Act, 1962. But this finding does not ipso facto mean that the demand for duty is time barred. The duty is payable in terms of the Bond executed under Condition 104 of Notification 21/2002-Cus. xxx xxx xxx xxx 30. Since there is contravention of the conditions of the exemption notification No. 21/2002-Cus the helicopter is liable to confiscation under section 111(o) of the Customs Act also. 31. Since the helicopter is liable to confiscation under section 111(d) and section 111(o) of the Customs Act, UHPL and is managing director are liable to penalty under section 112 of the Customs Act. However, since this is a matter of interpretation of the notification and there was lack of understanding among many as seen from the number of such cases that have been booked all over India, I consider that a nominal penalty is enough. 32. I do not find any willful mis-declaration or suppression on the part of UHPL or its Managing Director and I hold that there is no case for imposing penalty under section 114A of the Customs Act. 33. In view of the above facts and circumstances, I pass the following order: ....
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....o address the above issues, we would like to refer the relevant legal provisions contained in the Customs Act, 1962; Aircraft Act, 1934, Aircraft Rules, 1937 and relevant exemption entry in Notification No. 21/2002-Customs dated 01.03.2002, as amended by notification No.61/2007-Customs dated 03.05.2007, for consideration of the subject issues under dispute. Customs Act, 1962 "Section 2. Definitions- In this Act, unless the context otherwise requires, (1A) "aircraft" has the same meaning as in the Aircraft Act, 1934 (22 of 1934);" The Aircraft Act, 1934 "2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (1) "aircraft" means any machine which can derive support in the atmosphere from reactions of the air, a[other than reactions of the air against the earth's surface and includes balloons, whether fixed or free, airships, kites, gliders and flying machines; (2C) "Directorate General of Civil Aviation" means the Directorate General of Civil Aviation constituted under section 4A; 4A. (1) The Central Government may constitute a body to be known as th....
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....between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognisably systematic series, each flight being open to use by members of the public; (18) "Director-General" means Director-General of Civil Aviation; 3A. Delegation of Powers - (1) Any power or duty conferred or imposed by these rules on the Central Government may be exercised or discharged by the Central Government or by any person authorised by it in that behalf; (2) Any power or duty conferred or imposed by these rules on the Director-General may be exercised or discharged by the Director-General or by any other person authorised by the Central Government in that behalf;" Notification No. 21/2002-Customs dated 01.03.2002 "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 17/2001-Customs, dated the 1st March, 2001, the Central Government, being satisfied that it is necessary in the public interest so to do, her....
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....tors of aircraft" shall include engines, engine parts, wireless transmission apparatus, wireless receivers, iron and steel washers and screws, ball and roller bearings and other parts." Notification No. 61/2007-Customs dated 03.05.2007 "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 21/2002-Customs, dated the 1st March, 2002 which was published in the Gazette of India, Extraordinary, vide number G.S.R. 118(E) of the same date, namely :- In the said notification,- (A) in the Table,- (i) against S. No. 187, for the entry in column (4), the entry "Nil" shall be substituted; (ii) after S. No. 347 and the entries relating thereto, the following S. Nos. and entries shall be inserted, namely :- 347A. 8802 (except 8802 60 00) All goods Nil - 103 347B. 8802 (except 8802 60 00) All go....
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....3 dated 02.09.1993 i.e., Permit to Operate Non-Scheduled Air Transport Services (Passenger) to the importer appellants for a number of aircrafts which included the specific helicopter viz., Bell Helicopter aircraft of model No.412-EP, manufacturer's serial No.36643 registered as VT-HGK having seating capacity of 13 imported by the appellants in this case. This permit was subsequently renewed by the DGCA and was valid during the relevant time of dispute. 8.3. It is fact on record as per paragraph 8 of the SCN and paragraph 10.1 of the impugned order that the agreement entered into by the appellants with the two companies viz., Western Geco International Ltd., Mumbai and Heligo Charters Pvt. Limited, Mumbai were for providing helicopters for hire. In the agreement dated 13.06.2008 under clause 3 specify the services to be provided by the appellants as follows: "3.0 SERVICES TO BE PROVIDED 3.1 The CONTRACTOR (M/s United Helicharters Pvt. Limited) shall provide Helicopter services during daylight hours from Visakhapatnam Airport or from any such mutually agreed yeah report within to the offshore and return as required by the COMPANY, inter alia for the ....
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.... of aircraft for a minimum of 40 hours per month is a kind of assurance of business given to the appellants as a favourable/regular customer. In respect of the agreement dated 19.09.2006, it transpires that this is another agreement of similar nature wherein the services of hiring helicopter was provided to one another company. The essence of the above contracts/agreements indicate that the appellants have agreed to undertake to provide helicopter services for undertaking a specific journey or voyage as requisitioned by the companies for transporting its executives, personnel and its nominees. In specific, the contract is for providing Non-Scheduled Air Transport Services as per the permit granted by DGCA, for transportation of persons from one place of origin to another place of destination. 8.4 In terms of the notification No. 21/2002-Customs dated 01.03.2002 as amended by notification No. 61/2007-Customs dated 03.05.2007, it is provided that import of goods falling under chapter heading 8802 (except 8802 60 00) are exempt from basic customs duty subject to fulfillment of the condition No. 104. Helicopters being classifiable under Customs Tariff Item 8802 1100, 8802 1200....
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....ects also in greater detail in the following paragraphs. 9.2 The explanation provided under condition No.104 state that for the purpose of exemption entry, the meaning of 'operator', 'non-scheduled (passenger) services' and 'non-scheduled (charter) services' shall be construed as provided therein. We have compared the explanation as given in the notification with respect to the definition of similar phrases given in the Rule 3 of Aircraft Rules, 1937 read with Civil Aviation Requirement (CAR) issued under Rule134A ibid, and provided the same for ease of reference as below: Explanation in Notification No.61/2007-Customs dated 03.05.2007 "Explanation (a) 'operator' means a person, organization, or enterprise engaged in or offering to engage in aircraft operation; Explanation (b) 'non-scheduled (passenger) services' means air transport services other than Scheduled (passenger) air transport services as defined in rule 3 of the Aircraft Rules 1937. Explanation (c) 'non-scheduled (charter) services' means services provided by a 'non-scheduled (charter) air transport operator', for charter or hire of an aircraft to any person, with published t....
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....ognizably systematic series, each flight being open to use by members of the public; 3.3 'Non-Scheduled air transport service' means an air transport service, other than a scheduled air transport service as defined in para 3.2 above, being operated for carriage of passengers, mail and goods, and includes charter operations. 3.4 "Charter operation" means an operation for hire and reward in which the departure time, departure location and arrival locations are specially negotiated and agreed with the customer or the customer's representative for entire aircraft. No ticket is sold to individual passenger for such operation. 3.5 'Non-Scheduled Operator's Permit' means a permit authorizing an operator to carry out non-scheduled air transport services subject to conditions as may be specified in the permit." We also note that Civil Aviation Requirement (CAR) is issued under Rule 134A ibid, and CAR 1999 deals with non-scheduled (passenger) services operator and CAR 2000 deals with non-scheduled (charter) services operator; predominantly both contain identical provisions with the exception that CAR 2000 contain some relaxed provisions mea....
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....een the definitions contained in the International Civil Aviation Organization (ICAO) Convention & its Annexes and the Aircraft Act, Aircraft Rules or the CARs, the definitions contained in the Aircraft Act, Aircraft Rules or the CARs would prevail. The above clarification issued by the competent authority under the Ministry of Civil Aviation in the Government of India, being the highest policy-making body for civil aviation, aircraft, air services etc., a different interpretation, for the purpose of duty exemption alone, cannot be taken as a basis to deny the exemption benefit in the present case. In our view this is the proper way of interpretation of the explanation provided in the notification inasmuch as the said notification especially states that the explanation given therein is in terms of the approval given by DGCA and CAR provided by it and that the importer shall conform to the Civil Aviation Requirement under the provision of rule 133A of the Aircraft Rules, 1937. 9.5 Our above views also find support in the policy pronouncement made in the Parliament by the Union Minister for Finance in the Union Budget for the financial year 2007-2008 which is extracted below....
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....t of helicopter in the present case is covered by B/E No.397583 dated 26.12.2007, the customs duty exemption entry relevant to the dispute is the Sl. No. 347B of the notification No.21/2002Customs as amended by notification No.61/2007-Customs dated 03.05.2007. 9.6 We further note that inasmuch as the meaning of "Private aircraft" under Rule 3(43) of Aircraft Rules, 1937 cover all aircraft other than aerial work aircraft or public transport aircraft; and the present case of import of helicopters issued with a permit of Non-Scheduled Air Transport Services (Passenger) being covered under the definition of 'public transport aircraft', the impugned imported helicopter cannot be equated to private aircraft or import of aircraft for private use in order to deny the customs duty exemption in terms of Serial No. 347B of the notification dated 03.05.2007. 10.1 We also find that the above issues of dispute have been discussed at length in a number of orders issued by the Tribunal and the Hon'ble High Court of Delhi and Hon'ble Supreme Court in the following cases. In the case of Reliance Commercial Dealers Ltd., Sudhir Nayak (supra), the Tribunal relying on the Larger Bench decis....
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....he purpose of granting the exemption was, therefore, to encourage the import of aircraft, which could be used for non-scheduled operation. 19. The aforesaid exemption notification dated 3-5-2007 inserted Condition No. 104 which requires at the stage of import, an approval from MCA to import the aircraft for non-scheduled (passenger) service and an undertaking by the importer to the Customs authority that the aircraft would be used only for non-scheduled (passenger) services and that the operator would pay on demand, in the event of his failure to use the aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under the notification. 20. Explanation (b) to Condition No. 104 of the exemption notification defines non-scheduled (passenger) services as: "(b) Air transport services other than scheduled (passenger) air transport services as defined in Rule 3 of the Aircraft Rules, 1937." 21. The aforesaid definition refers to 'air transport services' and 'scheduled (passenger) air transport services' as defined in rule 3 of the Aircraft Rules, 19378. 22. "Air transport s....
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....senger) services as defined in clause (b) of the Explanation to Condition No. 104 of the exemption notification. 54. Non-scheduled (passenger) services has been defined in the aforesaid clause (b) to mean air transport services other than scheduled (passenger) air transport services as defined in rule 3 of the Aircraft Rules. Thus, what has to be seen is whether the use of the aircraft satisfies the following two requirements of clause (b): (i) The use should be for air transport service; and (ii) Such air transport service should be other than scheduled (passenger) air transport service as defined in rule 3 of the Aircraft Rules. 55. 'Air transport service' has been defined in rule 3(9) of the Aircraft Rules to mean service for transport by air of persons for any kind of remuneration whatsoever. There is no dispute that the appellants have used the aircraft for the transport of persons for remuneration. There is no stipulation or restriction or a condition in the said definition that a tariff should be published or that such service should be rendered only on per-seat basis and not by chartering or about the category or class of persons ....
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....iff, and who is registered with and approved by DGCA for such purposes and who confirms to the Civil Aviation Requirements. An aircraft operator can be said to provide non-scheduled (charter) service only if the service satisfies the requirements of clause (c). The appellants are not registered and approved with DGCA as non-scheduled (charter) air transport operator and in some cases there is no published tariff. The appellants, therefore, cannot be said to have provided non-scheduled (charter) services as defined in clause (c). 61. The appellants have, therefore, provided non-scheduled (passenger) services, as defined in clause (b) of the Explanation to the exemption notification. Non-scheduled (passenger) operator can carry out charter service 62. It would now have to be seen whether there is any restriction or prohibition against providing air transport service by way of charter of aircraft, while providing non-scheduled (passenger) services. 63. As noticed above, the definitions of air transport service and non-scheduled (passenger) service do not stipulate any restriction or impose a condition that such service should be rendered only on per....
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....uled (charter) services operator define a non-scheduled air transport services (passenger) in the same manner as defined in clause (b) of the Explanation to Condition No. 104. ** ** ** 68. It is, therefore, clear that an operator providing non-scheduled (passenger) services can always provide such services either on individual seat basis or by chartering the entire aircraft and such a restriction is not contained either in Condition No. 104 or Aircraft Rules or the Civil Aviation Requirements. 69. It also needs to be remembered that charter is one way in which passenger services can be rendered; the only difference is that instead of individual seats, all the seats of an aircraft are hired out to one person. It is, therefore, difficult to conceive that by chartering the aircraft, non-scheduled (passenger) services would not be rendered as even in such a case an operator transport passengers. ** ** ** 71. In this view of the matter, the contention of the learned special counsel for the department that a charter permit is required for carrying out charter operations cannot be accepted. In fact, the prohibition is on a non-sched....
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....ounsel for the appellants submitted that the aircraft is available not only to group companies but also to other customers. 90. In the first instance, personnel of companies which are group companies of the appellant are also members of public. The aircraft is, therefore, available for used by the public. Even otherwise, this cannot be a reason to hold that the air transport service provided by the appellants would fall outside the scope of non-scheduled (passenger) service. ** ** ** Requirement of issuing air-tickets "100. The definitions of 'air transport service' and 'non-scheduled (passenger) service' do not stipulate any restriction or condition that such service should be rendered only on per-seat basis. Nor is there any stipulation in the said definitions for issuance of passenger tickets. The Policy Guidelines for Starting Scheduled/NonScheduled Air Transport Services issued by the Ministry of Civil Aviation clearly state that non-scheduled operation means an air transport service other than scheduled air transport service and that it may be on charter basis and/or nonscheduled basis and that such operator is not per....
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....specified and recommended by the Civil Aviation Ministry. It is for this reason, as would be apparent from the statement made by the Hon'ble Finance Minister in the Parliament, that the exemption notification dated 3-5-2007 was issued granting 'nil' rate of duty on import of aircraft for non-scheduled (passenger) service as well as non-scheduled (charter) services subject to Condition No. 104. 92. The alleged misuse of the aircraft, as suggested by the customs authority, has repeatedly been clarified by DGCA and the Civil Aviation Requirements relating to non-scheduled (passenger) services. It is the DGCA which is empowered to issue the Civil Aviation Requirements under rule 133A of the Aircraft Rules. The DGCA has not complained of any violation by the non-scheduled (passenger) services operator and in fact has been renewing the permits from time to time. It is only when the competent authority under the Director General of Civil Aviation Ministry finds as a fact that the permit holders have violated the conditions that it would be open to the customs authorities, in terms of the undertaking given by the permit holders, to require payment of the duty, which ot....
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....ibunal in King Rotors held that since the flight operations are not open to the public, the aircraft would not be considered to have been used for non-scheduled (passenger) services. This view, as discussed above, proceeds on an incorrect appreciation of the definition of non-scheduled (passenger) services. 120. The division bench of the Tribunal in East India Hotels held that published tariff to the public is a mandatory requirement of a non-scheduled (passenger) service and so if the tariff is not published, the use of the aircraft would be as a private aircraft. It was also held that it is the customs department that has to ensure compliance of the undertaking. These views, for the reasons stated above, are not correct views. 121. This apart, both Sameer Gehlot and King Rotors have been distinguished by the division bench in East India Hotels for the reason that both these cases were covered by the earlier CAR 1999, whereas the case before the division bench was covered by CAR 2010. ** ** **" 37. The use of the aircraft has, therefore, been in accordance with the scope of non-scheduled (passenger) services and there is no violation of th....
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....3-23; 17-18; 14/2022 dated 08.08.2022, the Tribunal had specifically stated in paragraph about the appellants having been allowed as intervenor and the answers to the issues referred therein. The relevant paragraphs of the said order are extracted and given below: "2. ... It needs to be stated that in Customs Appeal No. 338 of 2009, which is pending before the Principal Bench of the Tribunal at Delhi, submissions have been advanced as an intervenor. xxx xxx xxx xxx 124. Thus, for the reasons stated above, the answers to the reference are as follows: (i) The reference made to the larger bench has not been rendered infructuous on dismissal of the Civil Appeal filed by the department against the order of the Tribunal in Reliance Transport; (ii) The appellants have not violated condition (b) of the Explanation contained in the exemption notification; (iii) The aircraft imported for non-scheduled (passenger) services can be used for non-scheduled (charter) services; (iv) Aircraft imported by the appellants cannot be classified as private aircraft; (v) The customs autho....
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....duled (passenger) service operator as the peripheral circumstances such as absence of published tariff, non-issue of tickets and carriage of employees of companies, not to be construed as intention for own user by harmoniously interpreting the exemption notification and Aircraft Rules and CAR. The relevant paragraphs of the above order is extracted and given below: 8. The exemption notification is, thus, pivotal to the dispute. It is intended to cover - 'an operator who has been granted approval by the competent authority in the Ministry of Civil Aviation to import aircraft for providing non-scheduled (passenger) services or non-scheduled (Charter) services and subject to furnishing of undertaking that - '(a) The said aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services, as the case may be; and (b) He shall pay on demand, in the event of failure to use the imported aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under this notification.' with the expressions 'operator', '....
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....mental business. The economy of a country is guided by the administration of the day through its fiscal, monetary and trade policies. The ways and means of public finance, most often, includes within it a tax policy that has the object of maximising revenue; these are patent in the tariff schedules appendant with the taxing statutes. However, any deviations, absolute or conditional and partial or entire, are exceptions to that objective of tax policy. Governance is not all about, or a limited to, tax collection; policies of the Government formulated by the various departments in the discharge of their respective allocated functions may, at times, be implemented by tweaking the tax rates which, in effect, are the various exemption notifications. As pointed out by Learned Counsel appearing for the respondent, citing the budget speech of Hon'ble Finance Minister, the impugned notification was impelled by proposals from the Ministry of Civil Aviation. It is, therefore, inconceivable that the availment, or denial, of the exemption can be decided without reference to the regulatory mechanism enacted for control of the air transportation industry in India. The public interest imperative o....
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....taxi operators' permitted then under the 'open sky policy' and now, as per Rule 134A of Aircraft Rules, 1937, to an Indian 'air transport undertaking' in possession of 'nonscheduled operator's permit' issued by the Central Government. In Rule 3A 'scheduled air transport service' is defined as - '(49) an air transport service undertaken between the same two or more places and operated according to a published timetable or with flights so regular frequent that they constitute recognisably systematic series, each flight being open to use by members of the public' and governed by Schedule XI of the said Rules while 'air transport service' is defined in Rule 3 as - '(9) a service for the transport by air of persons, mails, or any other thing, animate or inanimate, for any kind of remuneration whatsoever, whether such service consists of a single flight or series of flights;' and 'air transport undertaking' as- '(9A) an undertaking whose business includes the carriage by air of passengers or cargo for hire or reward;' Transport by air for remuneration is, thus, permitted to air transport undertakings that are not 'scheduled air transp....
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....Moreover, the provisions of Carriage by Air Act, 1972, which were intended for regulating international transport, is not applicable to domestic travel and, as submitted by Learned Counsel, ticketing carries with it the privilege of limiting the liability as carrier owing to which the exercise of option not to issue tickets may merely widen liability without compromising status. Carriage of employees of group companies does not alter the status of the aircraft as such employees are not excluded from the larger world of the travelling public. The attempt by Revenue to segregate people into classes that are neither recognised nor acknowledged either in the notification or by the statute governing air transportation is nothing but the imposition of a whimsical and prejudiced template to deny the exemption from duty and as the qualification for import is not compromised at the threshold, as alleged in the grounds of appeal, the requirement of licensing is not any longer an issue in dispute. We, therefore, do not intend to tarry further on that submission though we may advert to the characteristics at a later stage in the decision. 14. The other distinctions that recur in this ....
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....se to those imperatives are promptly accommodated in articulations of policy - promulgation as Civil Aviation Requirement and notification as Aeronautical Information Services - emanating from the regulator, the Director General of Civil Aviation. The scheme and intent of exemption notification, having deployed expressions referred to, and defined in, the Aircraft Rules, 1937 as well as in the statutory instruments empowered by Section 133A of Aircraft Rules, 1937, cannot, in the absence of meaning assigned to them within the exemption notification itself, be subject to interpretation de hors the said Rules; any other course of action would be weighed down by subjective bias motivated only by disinclination to allow the benefit. 18. 'Charter operation' is, undoubtedly, acknowledged as an independent permissible activity in the exemption notification but the Aircraft Rules, 1937 is devoid of a definition for that expression. Yet 'charters' were always allowed to operate, stringent though it be, as exceptions to the general policy under the Aircraft Rules, 1937. Under this law and, more particularly, during the monopoly of the State over commercial flights, 'scheduled air tr....
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....herefore, be safe to conclude that operation of 'charter service', being a dilution of 'non-scheduled passenger service', is also no less of compliance than deployment in the latter. 19. A corollary to be addressed is the enlargement of the frame of dispute by the present appeal : whether compliance with the notification is sufficed by deployment in consonance with the undertaking furnished or, conversely, prescribes alternative deployment. We would presume, in the light of the stipulation in the notification pertaining to 'charter operation', that it is not the submission of Revenue that the Central Government is not competent to permit such operations. It is also not the case of Revenue that the permit of the respondents herein has been endorsed for 'charter operations'; nor can we conceive that the regulated environment of 'physical control', to use a phrase that is easily perceptible to tax administration, would have countenanced operations not contemplated by the permit. Hence, the allegedly non-permissible 'charter operation' appears to have been an inference derived only from documents of the respondent herein. Whether those have to be accorded primacy over the unim....
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....ai - 2011 (269) E.L.T. 343 (Tri. - Mum.) = 2011-TIOL-1785-CESTAT-MU and has taken a diagonally opposite view and denied the benefit of exemption notification.' and of Learned Counsel therein that - '11.10 it is further urged that the facts of the present case are fully covered by the precedent ruling of this Tribunal in favour of the appellant in the case of CC, New Delhi v. Sameer Gehlot - 2011 (263) E.L.T. 129 (Tri. - Del.) and Global Vectra Helicorp Ltd. v. CC (Import), Mumbai - 2015 (329) E.L.T. 235 (Tri. - Mumbai) = 2015-TIOL-968-CESTAT-MU. Accordingly, Ld. Counsel for the appellant prays for allowing their appeal by setting aside the impugned order and for return of their Bank Guarantee, duly discharged.' which, though taken on record, did not prevent the Tribunal from holding that the particular difficulties, impeding the referral Bench in rendering a decision, warranting recourse to Larger Bench is not apparent in the reference order and, noting that the facts relating to the dispute in re King Rotors & Air Charter P. Ltd. which, taking a stance contrary to that of the earlier decision in re Sameer Gehlot and thereby cited, in re VRL Logistics Lim....
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....Bench of this Tribunal in King Rotors & Air CharterP. Ltd. v. C.C. (ACC & Import), Mumbai - 2011 (269) E.L.T. 343 (Tri. - Mumbai). After referring to the earlier decision in Sameer Gehlot, the Tribunal in King Rotors & Air Charter, at paragraphs 24.18 and 24.19 of the order proceeded on any independent interpretation of Notification No. 61/2007-Cus. and concluded that though the fact of undertaking takes place at the time of importation, the subjects of undertaking at 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 before the specified purpose. In King Rotors & Air Charter violation of the conditions of import to place post-import. The tribunal concluded that this crucial aspect did not receive attention in the Sameer Gehlot case when it view that the condition was only a pre-importation condition. According to the Tribunal in the later decision, the post-importation nature of the subjects of under....
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.... presently, be adduced. 31. Our analysis supra of the superfluity of the substitution of the Explanation in the exemption notification that erased the expression 'as the case may be' and, ostensibly, obliterated the distinction between 'non-scheduled passenger service' and 'non-scheduled charter service' distinguishes a key finding in re King Rotors & Air Charter P. Ltd. but for which, the outcome therein may, in all probability, have been consistent with the various other decisions of the Tribunal. Again supra, we have drawn upon the wisdom of the Tribunal in concluding that the decision in re King Rotors & Air Charter P. Ltd. had erroneously declared the earlier decision to be per incuriam which would restore the decision in re Sameer Gehlot as a binding precedent. Moreover, in ignoring the decision in re Sameer Gehlot, the validation conferred by the approval of Hon'ble Supreme Court and, thereby, the binding precedent thereof was, obviously, not available to the Tribunal while deciding in re King Rotors & Charters P. Ltd. We would be committing an act of judicial indiscipline if we were to ignore that approval merely because the decision impugned before the Hon'ble Sup....
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....ment" dated 14-4-2008 with Heligo, the assessee allowed the helicopter to be used by Heligo for the purpose of mobilizing and demobilizing of personnel of third party companies and for movement of their freight and/or equipment. Under the agreement, Heligo would reimburse the actual costs incurred by the assessee in sourcing and acquiring spares for maintenance of the helicopter. The necessary infrastructure for maintenance of the helicopter would also be provided by Heligo. The entire cost of insurance to cover all liabilities in respect of passengers, cargo, crew, helicopter and third party would be incurred by the assessee and reimbursed to them by Heligo. Heligo would also pay monthly remuneration to the pilots of the assessee. They would also bear the costs of maintenance of the helicopter and also the costs of fuel and consumables required for its operation. On a perusal of the charterhire agreement between the assessee and Heligo, we find that Heligo chartered/hired the helicopter for their exclusive use and they incurred the entire costs of operation and maintenance of the helicopter and even the cost of insurance to cover all liabilities. One significant term of the contra....
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....or the flights. [This view is fortified by clause (9.2) of "Passenger CAR", which deals with non-scheduled operators and their operations and says : In such operations, the operators shall not publish their time schedules as the operations are of non-scheduled nature.] Other features are common for both scheduled and non-scheduled services. It would follow that, like scheduled air transport service (passenger), nonscheduled air transport service (passenger) also should be open to use by members of the public. As the flight operations in this case were not open to the public, the helicopter cannot be held to have been used for "nonscheduled (passenger) services".' and raised as a contention in the grounds of appeal, as well as the show cause notice, does not appear to hold true. The appellation of 'scheduled' and its contra have naught to do with schedules, or timetables, but with the class to which 'air transport services' are assigned. The former has a permanent, and the highest, status under Aircraft Rules, 1937 with privileges accorded by international conventions on freedoms of the air while the latter is a status arising from not being 'scheduled' but by permit. That ....
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....rtment against the above order of the Tribunal in the case of Airmid Avaiation Services (P) Ltd., (supra) have dismissed the appeal by holding that that they did not find that issues raised by the Revenue is covered under its jurisdiction in terms of Section 130 E of the Customs Act, 1962 to entertain such appeal and thus they had dismissed the appeal by keeping all the issues of law as open. The relevant paragraphs in the said order is extracted below: "4. We have gone through the statement of case filed on behalf of the appellant and do not find that the issues raised come within the four corners of Section 130E of the Customs Act, 1962. 5. We, therefore, do not see any reason to entertain these appeals in our jurisdiction under Section 130E of the Customs Act, 1962. 6. The civil appeals are, therefore, dismissed leaving all questions of law open to be agitated in an appropriate case." "26. The following conditions have to be satisfied pre-negative list for a service to qualify as a GTA service : (i) There should be an activity in relation to transport of goods by road; (ii) Issuance of consignment note by the GTA; (iii)....
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....with penalty on the importer cannot be sustained. The relevant paragraphs in the above said order is extracted below: "11. The submissions advanced by the learned senior counsel for the appellant deserve to be accepted as the issues raised in this appeal has been decided by the Larger Bench of the Tribunal in the order dated 88-2008. In fact, the reference was made to the Larger Bench in this appeal. 12. The following issues were decided by the Larger Bench of the Tribunal in the order dated 8-8-2022: (i) In terms of Condition 104 of the exemption notification, if a service is covered by "air transport service" defined 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 ....