TMI Blog2022 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri PRV Ramanan, Special Counsel for the Department ORDER M/s. Taneja Aerospace and Aviation Ltd.[ the appellant ] has filed this appeal against for setting aside the order dated 20.11.2009 passed by the Commissioner of Customs (Preventive), New Customs House, New Delhi [ the Commissioner ], holding that the appellant is not entitled to claim the benefit of the exemption notification no. 61 of 2007 dated 03.05.2007 [ the exemption notification ] that amended the earlier exemption notification no. 21 of 2022 dated 01.03.2002 on the import of twine engine light weight Aircraft Type Cessna 525A Citation CJ2+, Registration No. VT-BRT, MSN-525A0373 [ Aircraft BRT ] through Bill of Entry No. 226584 dated 17.12.2007. 2. The Commissioner has confirmed Customs Duty demand of Rs. 06,22,67,295/- along with a penalty of Rs. 03,00,00,000/- under section 112 of the Customs Act, 1962 [ the Customs Act ]. The Commissioner has also ordered for confiscation of the Aircraft BRT under section 111 (o) of the Customs Act with an option to redeem the same on payment of Rs. 6.5 crores under section 125 of the Customs Act. 3. The exemption notification dated 03.05.2007, on which revolves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay on demand, in the event of his failure to use the imported aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under this notification. Explanation. for the purposes of this entry,- (a) operator means a person, organization, or enterprise engaged in or offering to engage in aircraft operation; (b) non-scheduled (passenger) services means air transport services other than scheduled (passenger) air transport services as defined in rule 3 of the Aircraft Rules 1937. (c) non-scheduled (charter) services means services provided by a non-scheduled (charter) air transport operator , for charter or hire of an aircraft to any person, with published tariff, and who is registered with and approved by Directorate General of Civil Aviation for such purposes, and who conforms to the civil aviation requirement under the provision of rule 133A of the Aircraft Rules 1937; Provided that such air charter operator is a dedicated company or partnership firm for the above purposes. 4. A perusal of Condition No. 104 would show that at the stage of import, the importer should have an approval from the competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r services and passenger services are mutually exclusive; (ii) The exemption notification does not refer to Aircraft Rules or any Regulation framed by DGCA for the purpose of NSOP services; (iii) The undertaking given as per exemption notification is only to operate NSOP (passenger) services and for which the appellant has not been issuing tickets to individuals; (iv) The operation of Aircraft BRT cannot qualify as charter services also in absence of a published tariff ; (v) The Aircraft BRT was only used within the same group/associated companies under long term lease contract and the same was not publicly available to others for hire; (vi) Non-violation of NSOP permit issued by the DGCA by the appellant is irrelevant and the Department has jurisdiction to take action for violation of the undertaking given by the appellant at the time of import and which was for undertaking NSOP (passenger) services only; and (vii) In view of the undertaking given to the Department, section 28 of the Customs Act is not applicable and duty can be demanded without any limitation for violation of conditions of exemption notification. The authority to demand and recover Customs Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s other than scheduled (passenger) air transport service defined in rule 3(49), it would be a NSOP (passenger) services within the meaning of clause (b) of the Explanation to Condition No. 104 of the exemption notification. These two conditions are satisfied by the importers, inasmuch as: - a. The contention of the department that the appellants have rendered air transport service to their group companies by carrying personnel of their group companies is not of any relevance as there is no prohibition in the said definition against any kind of persons to be transported; b. There is no stipulation or restriction or a condition in the definition that a tariff should be published or that such service should be rendered only on per-seat basis and not by chartering or about the category or class of persons to be transported; (ii) There is no requirement of having a published tariff and Condition 104 (c) to the exemption notification cannot be said to be violated on this ground; (iii) Aircraft imported for non-scheduled (passenger) services can be used for non-scheduled (charter) services and there is no restriction on the same. The exemption notification or the CAR do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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