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2023 (2) TMI 47 - HC - CustomsViolation of conditions of exemption notification - import of aircraft - Interpretation of statute - whether used for private purposes and not for providing non-scheduled (passenger) services or non-scheduled (charter) services? - violation of Condition no.104 of the Notification or not. - N/N. 21/2002-CUS, as amended by Customs Notification 61/2007-CUS Whether the learned Tribunal had erred in misinterpreting the Notification and concluding that the appellant had not complied with the conditions for availing duty exemption under the Notification? HELD THAT:- In terms of explanation (b) to Condition no. 104 of the Notification, the term non-scheduled (passenger) services is defined to mean air transport service other than ‘scheduled (passenger) air transport service’ as defined in Rule 3 of the Aircraft Rules, 1937 (hereinafter ‘the Aircraft Rules’). It is, thus, necessary to refer to the Aircraft Rules - In terms of explanation (b) to Condition no.104 of the Notification, 'non-scheduled (passenger) services' would mean ‘air transport service’ other than the air transport service falling within the aforementioned definition. However, it is essential that the aircraft is used for ‘air transport service.’ A plain reading of Rule 3(9) of the Air Craft Rules, indicates that the term ‘air transport service’ is defined in wide terms and would cover transport by air of humans, animals, mails or any other things, animate or inanimate. However, it is necessary that the said service be provided for ‘remuneration’. The said definition also clarifies that the service may be for any kind of remuneration. However, for a service to fall within the meaning of ‘air transport service’ as defined in Rule 3(9) of the Aircraft Rules, it is essential that the same is provided for some kind of remuneration. Clearly, flight service for no remuneration at all would not qualify to be considered as air transport service within the meaning of sub-rule (9) of Rule 3 of the Aircraft Rules - In the facts of the present case, the appellant has used the aircraft for its own use without any remuneration whatsoever, either from the passengers transported by it or from any other person. In the circumstances, it would be difficult to accept that the appellant has used the aircraft for providing ‘air transport service’ within the meaning of Rule 3(9) of the Aircraft Rules. In the present case, the appellant has not used the aircraft for providing air transport service for remuneration of any kind. Even though it cannot be agreed with the learned Tribunal that the provision of non-scheduled (passenger) services as defined under clause (b) of explanation to Condition no.104 of the Notification, entails providing air transport services to public at large on payment of published tariff; but it is agreed with the conclusion that the appellant has not complied with the Condition no.104 of the Notification. Appeal disposed off.
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