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TMI Blog2024 (3) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the non-prohibited goods once held confiscated and whether fine in lieu of confiscation of ATF is required to be imposed by the Commissioner in the facts of the case and ; (b) Whether freight @ 20% of FOB, insurance @ 1.125% of FOB and landing charges on 1% of CIF is required to be added to arrive at the assessable value of ATF in the case or not. 2. The appeal was initially dismissed by final order No. C/95 of 2011 dated 18.02.2011 on the ground that Revenue had not obtained clearance from the Committee of Disputes Resolution before filing the appeal. However, liberty was given to the Revenue to seek revival of appeal after getting such clearance. Thereafter, Revenue filed an application for restoration of appeal No. 41/2011 on the ground that the clearance from the Committee of Disputes Resolution was no longer necessary. This application was allowed by miscellaneous order dated 30.04.2012 and this appeal was restored to its original number. Assailing this miscellaneous order restoring this appeal, the respondent filed Writ-Petition No. 6841 of 2012 before the High Court of Delhi, which was dismissed by judgment and order dated 11.01.2013. Therefore, this appeal is befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventy thousand and three hundred and fifty eight only) including rebate amount which was suo-moto adjusted by M/s IAL, under section 28 (2) of the Act, customs duties of Rs. 1,97,16,192/- already deposited by M/s IAL to the Central Government accounts towards the above demand was appropriated ; (iv) Ordered to recover interest from M/s IAL on confirmed duty of Rs. 2,02,70,358/-, under section 28AB of the Act; (v) Imposed penalty of Rs. 2,02,70,358/- (Rs. Two Crore, two lacs, seventy thousand, three hundred and fifty-eight only) under section 114A on M/s IAL refraining from imposing penalty under section 112 of the Act; (vi) Personal penalty of Rs. 10,000/- (Rs. Ten thousand only) under section 112 (a) & (b) of the Act was also imposed on Shri Vijay Kumar, the then G.M. (Finance) of M/s IAL". 7. The impugned order was reviewed by the Committee of Chief Commissioners and this appeal is filed on the following grounds. (i) The imported ATF was not declared before the Customs authorities and hence it was liable for confiscation and the Adjudicating Authority has rightly confiscated it under section 111 (f), 111 (m) and 111 (j) of the Customs Act, but he did not impose any rede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine the duty on the ATF consumed during the domestic flights, he submits that this issue is no longer res integra and it has been decided in the respondent's own case by this Tribunal in the following two cases that freight and insurance and landing charges need not be included in the assessable value. (i) M/s Air India Limited versus CC, New Delhi in Customs Appeal No. 50002 of 2018 vide Final Order No. 51343 of 2018 dated 10.04.2018 ; and (ii) M/s Air India Ltd. versus Commissioner of Customs (General), New Delhi in Customs Appeal No. 53530, 53537-53538 of 2018 vide Final Order No. 51068 of 2019 dated 18.04.2019. 11. We have considered the submissions of both the sides. 12. When aircrafts land in India from abroad, they carry not only the passengers and goods, but also substantial quantity of fuel in their tanks. This is a necessary requirement for flying. Thereafter, if the aircraft goes on another international destination, the fuel so imported gets exported in its international leg. However, where, after coming from abroad, say, from Dubai to Delhi, the aircraft moves a domestic journey, say, from Delhi to Mumbai and further, the fuel so imported in the fuel tank gets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption fine in lieu of confiscation. If the importer opts to pay the redemption fine and pays it, the goods will be returned to the importer. If the importer does not opt to pay the redemption fine, the goods will stand confiscated. In this case, although the goods were confiscated it was only a notional confiscation because the goods were not available at all. The case of the Revenue is the redemption fine must have been imposed in lieu of confiscation. We do not find any force in this submission of the Revenue. If the redemption fine is imposed, it cannot be extracted from the respondents because redemption fine is only an option and the respondent may not opt for it. If the respondents opts for it and pays the redemption fine then Revenue will have to return the confiscated goods which the Revenue cannot do in this case because the goods no longer exist. 15. The decisions relied upon by the Revenue do not carry its case any further. In the case of Dadha Pharma Private Ltd., the decision of Madras High Court is that in order to attract penalty under section 112 the person should have done or omitted to do any Act which Act or omission would render such goods liable to confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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