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TMI Blog2020 (1) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... d foreign run. The said ATF was supplied on payment of concessional rate of duty to the flights of Air India. It is the allegation in the show cause notice that the said ATF was supplied to flights operated by Air India for plying between Kolkata and Mumbai in India without a trip to foreign Airport on their voyage and therefore, the appellant is not entitled to concessional rate of central excise duty as provided in Notification no. 46/94-CE dated 22.09.2014. The adjudicating authority confirmed the differential duty demand and also imposed penalty and directed to pay the interest on the said duty amount. The Ld. Commissioner (Appeal I), Central Excise, did not interfere with the duty demand, and instead, reduced the penalty to Rs. 5,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration and affirmation of law by the Hon'ble Supreme Court of India. (v) Article 265 of the Constitution of India provides that, "No Tax shall be levied or collected, expect by the Authority of Law". In the present case, the demand of short levy, is extantly in violation of the CBEC Circular No. 33/2002-CUS dated 25.06.2002. The tax payer cannot be estopped from challenging a demand which is contrary to the law and in violation of Supreme Court judgment. Estoppel cannot operate against constitutional provisions under Article 265. The following cases are being relied upon on this proposition: (a) 1988 (34) ELT 465 (All.) (DB) (b) 1986 (26) ELT 298 (Cal.) 3. The Ld. DR justifies the impugned order and submits that the appellant di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcraft in terms of the definition of 'foreign going aircraft' in the Customs Act, 1962 or in terms of Board's instructions contained in letter No. 17/5/67- CX. III, dated 5-9-1967, mere change in flight number or IGM number during its flight between two Indian airports does not make such aircraft ineligible for duty free supply of fuel etc." 6. On careful reading of the above circular, we find that the Circular makes aircraft eligible for duty benefits as available to the foreign going aircraft, even though the aircraft louches two Indian ports and that mere change in the flight numbers will alter the situation. Appellant has also submitted letter dated 30.08.2001 issued by Air India confirming that the flight AI-680/681 is an internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in favour of M/s. IOCL. In view of the above findings, we allow the appeal with consequential relief. As such, we find that the impugned order is unsustainable. Respectfully following the judgment and order of the Division Bench of the Tribunal and also on merits, the impugned order is set aside and the appeal is allowed with consequential relief, if any." 7. In so far as the submissions made by the Ld. D. R. is concerned that the appellant at this stage cannot argue on their entitlement of duty benefit since the same was not agitated before the First Appellate Authority, we do not find any merit in the said submission. It is a settled position that legal point can be raised before the Tribunal even if it is not raised before the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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