TMI Blog2018 (8) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... aft. No freight element is attributable to fuel in the tank, the usage of which varies on different parameters. Appeal allowed - decided in favor of appellant. - C/282/2008-DB - Final Order No. 20950/2018 - Dated:- 9-7-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Manoj Arora, Advocate For the Appellant Smt. Kavitha Podwal, Superintendent(AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 23/01/2008 passed by the Commissioner whereby the Commissioner confirmed the demand of ₹ 7,34,622/- along with interest and also imposed equal penalty under Section 114A of the Customs Act, 1962. 2. Briefly the facts of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of the appellant by relying upon the decision of the Tribunal in the case of Inter Globe Aviation Ltd. Vs. CC, New Delhi [Final Order No.56130/2017 dt. 23/08/2017]. Further we find that in the above said case, the Tribunal has observed as under:- 7. The main point of dispute is the valuation of leftover ATF available in the fuel tank of aircraft landing in India from an international trip. The duty liability on such ATF is not under dispute. However, its valuation, more specifically, addition of freight element on notional basis to arrive at the value of such ATF is in dispute. The Original Authority held that the remnant ATF is transported by the aircraft and as such, as the actual freight is not ascertainable, a notion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the system of transporting goods in this way (OXFORD Advanced Learners Dictionary 7th ed.). We note that on this basis it cannot be said that fuel in the tank of aircraft used for propulsion can be considered as cargo/goods with attributable cost of freight. Further, we note that Rule 10(2) was applied by the lower authority on the ground that the freight of ATF is not ascertainable. We note that there is no freight element involved and hence, there is no application for Rule 10(2). 8. The Hon'ble Supreme Court in Wipro Ltd. - (2015) 14 SCC 161 = 2015 (319) E.L.T. 177 (S.C.), held that normally, the value of imported goods has to be the transactional value which means the price actually paid or payable for the goods import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. On arrival re-conciliation of quantity of fuel along with duty payable is also submitted. Duty payment is made through adjustment of pre-deposit made with the customs. This practice has been continuing for many years. In such factual position, it is not tenable for the Revenue to take up a decision that there is a violation of procedure and the appellant is liable to penalty under Section 112. We have perused the provisions of Section 112. The Original Authority did not mention under which sub-category of the provisions of Section 112, the appellant is held liable for penalty. There are different types of infringements listed under the section. We note that the Original Authority concluded that by not following the proper procedure and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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