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M/s. Ligare Aviation Limited Versus Commissioner of Customs, Amritsar

2017 (12) TMI 402 - CESTAT CHANDIGARH

N/N. 21/2002-Cus dated 01.03.2002 - principle of estoppel - export of aircrafts without filing any shipping bill at the port of export - illegal import of aircrafts - Department has alleged that the export of aircrafts was in contravention of Section 50 of the Customs Act, 1962 and, that their import being fresh import, the appellant violated Section 46(1) of the Customs Act, 1962 - whether after initial assessment and clearance, the subsequent taking out of the two aircrafts, out of India and b .....

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hich were imported initially and subsequently gone out of India under sale and purchase agreements and came back under the lease agreement, we hold that the order of ld. Commissioner is not sustainable and the same is set aside - appeal allowed - decided in favor of appellant. - Appeal No. C/60151/2017 - Order No. 62117 / 2017 - Dated:- 5-12-2017 - Mrs. Archana Wadhwa, Member ( Judicial ) And Mr. Devender Singh, Member ( Judicial ) Shri Tushar Jarwal & Shri Rahul Sateeja, Advocates for the A .....

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as provided under Section 50 of the Customs Act, 1962 and subsequent illegal import of the said two aircrafts without filing a bill of entry under Section 46 of the Customs Act, 1962 and evasion of payment of customs duties. 3. A letter dated 26.06.2015 was received from M/s. Indus-lnd Bank Limited, New Delhi informing that the appellant has sold aircraft VT-REM B-200/BB1700 in 2012 to M/s. INV-2R Leasing Company Limited which was already seized by Customs department; that the sale proceeds of .....

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ned show cause notice was issued in respect of two aircrafts mentioned above. The matter was adjudicated and in the adjudication order, ld. Commissioner confirmed the demand of ₹ 14,67,25,176/- under Section 28(4) of the Customs Act, 1962 and ordered confiscation of impugned aircrafts with an option to redeem the same on payment of redemption fine of ₹ 3.5 Crores on each aircraft. Penalties of ₹ 2.5 Crores each have also been imposed on M/s. Ligare Aviation Limited under Sectio .....

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dia Limited vs. CC (Import) 2015 (317) ELT 74 (Tri. Mum.) Ld. advocate further submits that the issue, whether the aircrafts taken out of India after their initial clearance for home consumption and brought back to India amounts to export and import respectively, is no longer res-integra and has been settled in favour of the assessee in the case of Noble Asset Company Limited vs. Commissioner of Customs (Preventive), Mumbai 2006 (205) ELT 901 (Tri. Mum.). He further contends that even if the sub .....

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applies here in this case. He also argued on the issue of extended period and the confiscation of aircrafts since there is no dutiability. 5. Ld. AR for the Revenue supported the impugned order and reiterated the findings of the adjudicating authority. Ld. AR could not show that the two orders passed by Principal Commissioner (Peventive), New Delhi and Principal Commissioner (Import), New Delhi have been appealed against by the department. 6. Heard the rival submissions and perused the record. 7 .....

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of said notification in 2008 and seized 7 aircrafts and issued show cause notice in September 2009 which was adjudicated by the Commissioner of Customs Preventive vide Order-in-Original dated 30.09.2010 in which aircrafts worth ₹ 271.01 Crores were confiscated and redemption fine in lieu of confiscation of ₹ 40 Crores was imposed. Duty amount of ₹ 56.51 Crores was confirmed and penalty of ₹ 15 Crores was imposed on the importer. The appellant appealed against the said Or .....

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handed over to M/s. INV-2R Leasing Company Limited as per Sale and Purchase Agreement dated 19.12.2012. Later, both aircrafts were brought back into India without filing necessary bills of entry, under Section 46 of the Act. The Department has alleged that the export of aircrafts was in contravention of Section 50 of the Customs Act, 1962 and, that their import being fresh import, the appellant violated Section 46(1) of the Customs Act, 1962. Thus, import duty was leviable on these aircrafts and .....

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sively settled by this Tribunal in the case of Noble Asset Company Limited (supra), wherein this Tribunal held as under:- 6. (d) (ii) (iii) ........... Under the Customs Act, the expression goods includes vessels. Therefore, when the vessel is brought into the country for the first time, the same are liable for payment of duty as any other goods. Once such goods have been assessed to duty & cleared, they are no longer remain imported goods by virtue of the definition of imported goods in Sec .....

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. In this regard, the definition of foreign going vessel is relevant. The definition states that foreign going vessel includes inter alia any vessel engaged in fishing or any other operation outside the territorial waters of India. 6. d (vi). The question whether the change of ownership of a vessel, after its first import and clearance from Customs, would render the subsequent owner liable for payment of duty once again. This question assumes relevance as the rig was imported first in the year 1 .....

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h this contention of the Revenue, as ownership of goods or a vessel, is irrelevant in determining its duty liability under the Customs Act. It is the act of Import, which renders goods liable for duty & no owners. Once an entity has been imported and assessed to duty and cleared for Home Consumption, they cease to be imported goods. The subsequent change of ownership of such goods will not render them again liable for duty. The liability for payment of Customs duty is independent of the owne .....

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This is for the reason that if import duty was payable on every inward movement of a vessel, it would have to be then refunded back by way of Drawback payments, whenever the vessel went to a non-designated location/out of India. Therefore, if a vessel carrying cargo arriving into Bombay Port say on May 1, 2006, would be liable to pay duty on the full value of that ship and the Shipping Company would then become entitled to refund of the said amount as Drawback, on May 6, 2006, under Section 74 o .....

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