TMI Blog2010 (10) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... nch by the officers of the Customs Department and even if it had not been done so, the moment the said letter had come to the knowledge of the department, it was necessary for the department to come forward with necessary explanation in that regard. Whether this point is considered or not is a totally different issue. Certainly the department could have taken different view for valid reason, if any, but the suppression of that letter is certainly non-appreciable.- Condition of pre-deposit waived. - C/603/2009 - C/191/2010-CUS(PB) - Dated:- 12-10-2010 - Justice R.M.S. Khandeparkar, Shri P. Karthikeyan, JJ. REPRESENTED BY : S/Shri K.R. Bulchandani, with K. Kunal and Tarun Gulati, Advocates, for the Appellant. Shri A.K. Raha, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the aircraft was undoubtedly for operation of the non-scheduled passenger services but the same included private operation of non-scheduled charter services. He further submitted that this was clearly clarified in the letter dated 15-12-2009 read with Civil Aviation Requirements Series for grant of permit to non-scheduled air transport services, hereinafter referred to as CAR, however, these aspects unfortunately could not be brought to the notice of the Tribunal while dealing with the matter relating to stay application on earlier occasion. Referring to the letter dated 22-8-2010, the learned advocate submitted that same was written by the concerned authorities in the course of investigation by the department and on the request by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in question, it was also submitted that same clearly discloses mutual exclusion of the non-scheduled passenger services and the scheduled charter services on the ground of permission and use of the air craft. Referring to the CAR, in particular clause 2.6, it was submitted that it apparently discloses the provisions therein are prospective in nature and therefore, the appellants are not entitled to avail any benefit therefrom. Again, referring to the notification, it was also sought to be contended that the explanation clause clearly requires the non-scheduled charter service operators to charge the same in accordance with the published tariff. As far as charter services to be rendered, according to the department, admittedly the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion which essentially refers to the availability thereof subject to grant of permission from the competent authority as regards the use of aircraft and it is revealed from various clauses comprised under CAR. The records prima facie disclose that the permission granted for import of aircraft to be operated for non-scheduled passenger services could utilise their aircraft also for charter services. Indeed, the letter dated 15-12-2009 by the Deputy Director of Air Transport, Civil Aviation had clarified the same. 6. As regards the contention regarding the admission relating to noncompliance of the condition regarding the pre publication of tariff, as rightly pointed out by the advocate for the appellants, we do not find any specific alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se his aircraft only for Charter services, whereas non-scheduled (passenger) permit holder is free to use his aircraft for both charter and passenger services and this explanation clearly goes to the root of the matter. And, therefore, it was certainly expected that such clarification must have been placed before the Bench by the officers of the Customs Department and even if it had not been done so, the moment the said letter had come to the knowledge of the department, it was necessary for the department to come forward with necessary explanation in that regard. Whether this point is considered or not is a totally different issue. Certainly the department could have taken different view for valid reason, if any, but the suppression of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance of one condition would disentitle the assessee to avail the benefit of exemption. But before penalising the assessee on the ground of non-compliance of the pre-condition of the exemption notification, it is important to give him an opportunity of showing cause against the proposed action in that regard. Opportunity to show cause should disclose the facts which would constitute violation of particular requirement of notification. In this regard, the violation which was alleged in the course of arguments was the absence of published tariff. As already stated above, the said violation did not figure anywhere in the show cause notice. It is settled law that matters cannot travel beyond the scope of show cause notice. 12. Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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