TMI Blog2017 (11) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Appeal No.54232, 54233 of 2014, Customs Appeal No.55372, 55640 of 2014 - C/A/57096-57099 /2017-CU[DB] - Dated:- 9-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri S Vasudevan, Advocate for the Appellants assessee Shri Govind Dixit, AR for the Respondent Revenue ORDER Per: V. Padmanabhan The present appeals are filed against the order in Appeal No.DLI-Custm-I G-Com-046-14-15 dated 11.7.2014. 2. Brief facts of the case are that M/s. Essar Infrastructure Holdings Ltd. (EIHL) now known as Arya Infrastructure Holding Ltd. , a company of Essar Group registered in Republic of Mauritius got an aircraft Hawker 850 XP Serial No. 258819, on lease basis on 24.8.2007. Shri Suresh Sundram, authorised signatory and Director in the appellant company, M/s. Futura Travels Ltd. (FTL), (which is a group company of M/s. Essar Group) paid the amount and signed the lease agreement on behalf of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rome; (b) That the identity of the aircraft is established to the satisfaction of the Customs Collector; and (c) That payment is demanded within six months from the date of export. (ii) It is the submission of the learned Counsel that when the aircraft came into India for the first time on 21.10.2007, it was registered in foreign country. It stayed in India for less than six months. Again the aircraft left for FDR fitment and subsequently returned to India after fitment on 26.1.08 after a short period. Finally, as per the lease agreement dated 20.2.2008, the aircraft was taken on lease by M/s. Futura Travels and duty was paid. (iii) Learned Counsel further submits that in 2007, an application was submitted before DGCA, Delhi by FTL, for the permission to fly the aircraft for non-scheduled operations (NSOP) in India. But the said permission was given only in year 2008 when the aircraft was in the possession of M/s. Futura Travels on lease basis. Learned Counsel submits that duty demand retrospectively 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived in Delhi, from which date the department is demanding duty. Moreover in the year 2007, the applicant have sought for permission for flying before DGCA only in Delhi. So the plea of the appellant that Delhi Customs had no jurisdiction is not sustainable in this regard. 9. The learned DR also submitted a written brief dated14.9.2017 in which he urged the following points: (i) The Essar Group of which M/s. Futura (appellant), was a part, always had the intention to register the Aircraft in India, which was a direct violation of the conditions of Rule 58(6) (a) of the Aircraft Rules. M/s. Essar Group thorugh their letter dated 26.12.2007 had informed the DGCA that M/s. Futura Travels Ltd. (an M/s. Essar Group of Company) had inducted one Hawker 850 XP (Serial No.258819) aircraft to operate under Non-Scheduled Air Transport (Passenger) Services. The Aircraft at that time was undergoing modifications at Hawker Pacific, Singapore to meet the DGCA s requirements for registration in India. (ii) The cost of fitments in Singapore was US$ 84.000/- on the basis of invoice recovered by Customs during investigation. Remittance details regarding this cost was provided by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight). The plea of the appellant that they did not register the Aircraft in India since the suitable Indian type pilot was not available, has been rejected by the Adjudicating Authority on the ground that Capt. Abhinav Singh, a pilot who initially flew the aircraft into India was an employee of the Essar Group. The Adjudicating Authority after discussing the grounds as mentioned above has passed a well reasoned impugned order which deserves to be wholly upheld. 10. We have heard both sides and considered the material available on record. The summary of key dates and events leading to the impugned order is summarised below: DATE EVENT Aug.2007 EIHL entered into short term lease agreement with Jet Finance 21.10.2007 Aircraft imported into India by EIHL and surety bond filed with Commissionerate, IGI, New Delhi 27.11.2007 Aircraft sent to Singapore by EIHL via Bangkok for FDR Fitments as per CAR regulations. 26.01.2008 Aircraft returned after fitment at Mumbai Airport (EIHL is importer on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it was the intention of the Essar group to register the aircraft in India as has been up subsequently done by FTL. Since EIHL and FTL are both group companies of the ESSAR group, he has demanded the customs duty on the aircraft for violation of the declaration made under Rule58(6) of the Aircraft Rules, considering the date of import as 21.10.2007 when the aircraft first landed in Delhi. She also held that Commissioner (Cus) Delhi had the jurisdiction to adjudicate this matter. 14. The main allegation in the SCN is that at the time of first import of the aircraft on 27.10.2007 by EIHL a declaration in the form of surety bond was submitted by EIHL in which it has been claimed that there was no intention to register the aircraft in India. During the course of investigation by customs, S/Shri Suresh Sundaram and Sunil Bajaj, Directors in the Essar Group Companies admitted in their statements that the Essar Group had the intention to take the same aircraft for NSOP in India. Therefore adjudicating authority has ordered confiscation of the aircraft and charged custom duty for violation of Rule 58(6)(a) of Aircraft Rules. 15. We are of the view that intentions are to be inferre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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