TMI Blog2019 (4) TMI 2132X X X X Extracts X X X X X X X X Extracts X X X X ..... NEW DELHI [ 2017 (9) TMI 926 - CESTAT NEW DELHI] where it was held that There is no freight involved with reference to left over fuel in the tank of an operating aircraft. Hence, there is no question such freight being not ascertainable and hence addition of 20% notional freight. Appeal allowed. - Hon ble Mr. Anil Choudhary, Member (Judicial) and Hon ble Mr. C L Mahar, Member (Technical) For the Appellant : Shri Manoj Arora, Advocate For the Respondent: Shri Vivek Pandey, AR PER C L Mahar : The issue involved in the above mentioned appeals is the same and therefore, they are being taken up together for decision. 2. The brief facts of the matter are that the appellant is a Government owned air carrier a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling charges as well as cost of insurance. Taking the shelter of Rule 10A of Customs Valuation (Determination of Value of Imported Goods) Rules 2007, the assessable value need to be enhanced by 22.125% of the FOB value as per the provisions of Rule 10(2) of Customs Valuation Rules. The following 3 show cause notices were issued which were adjudicated by the order-in-originals as given in the table below: Sl. No Show Cause Notice No. date Order in Original No. and date Amount involved ( in Rupees) 1 C.No.VIII(AP)10/P I/ShiftC/Misc/2015/16708 dated 29.11.2017 135/Adj./2018 dated 31.03.2018 34,89,140/- duty +3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder No.56130 /2017 dated 23.8.2017 has held that if there is no freight element involved, then there is no applicability of Rules 10(2) of the Valuation Rules, 2007. The learned advocate has further contended that since the issue of enhancement of assessable value taking the 20% of the FOB value as freight element has already been decided in favour of them and therefore, the above mentioned Order-in-originals are bad in law and need to be set aside. 7. We have also heard learned Departmental Representative who has agreed that the issue is no longer res integra in view of the decision of this Tribunal in the case of Inter Globe Aviation Ltd. (supra). 8. Having heard both the sides, we feel that the issue is squarely covered by this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant fuel, we could not discern any separate freight element, which can be added in the assessable value. The fuel in the tank is part of aircraft in operation. Fuel cost is calculated, and apparently, forms part of commercial consideration while fixing ticket charges for transporting aircraft. No freight element is attributable to fuel in the tank, the usage of which varies on different parameters. In other words, the aircraft did not transport ATF on which a freight element can be attributed. The plain meaning of Freight is goods that are transported by ships, planes, trains or lorries/trucks; the system of transporting goods in this way (OXFORD Advanced Learners Dictionary 7th ed.).We note that on this basis it can not be said that fue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght can be considered for valuation. In such situation, it will not be tenable to add a further notional freight of 20% to arrive at the assessable value. On this ground also, we find the impugned order is not sustainable. Regarding liability of the appellant for penalty under Section 112, we note that the impugned order observed that the appellants failed to follow the procedure of filing bill of entry and valuing the ATF properly. Admittedly, the appellants have been filing details of arrival of aircraft from foreign trip along with quantity of fuel 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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