2010 (11) TMI 85 - AT - Customs

Exemption notification - pre-import conditions - exemption notification allows use of imported aircrafts both for non-scheduled (passenger) services and for non-scheduled (charter) services and the CAR permits the former category to be used for the latter category - exemption notification does not restrict use of an imported aircraft by the group companies - intention of the Government that exempted aircrafts should not be allowed to be used by the group companies even on payment

Issues Involved:
1. Validity of exemption from customs duty under Notification No. 21/02-Cus.
2. Compliance with conditions specified in the exemption notification.
3. Post-importation monitoring and usage of the imported aircraft.
4. Grounds for appeal by the department and objections raised by the respondents.

Detailed Analysis:

1. Validity of Exemption from Customs Duty:
The respondents, M/s. Airmid Aviation Services Pvt. Ltd. (M/s. AASPL), imported a Eurocopter EC-135 helicopter availing exemption under Notification No. 21/02-Cus., dated 1-3-2002. The exemption was based on Permit No. 04/2008 issued by the Director General of Civil Aviation (DGCA) to operate non-scheduled air-transport services (passenger). Initially, the customs authorities granted the exemption, but later issued a show-cause notice demanding customs duty of Rs. 6,74,18,712/- on the grounds of alleged misuse of the exemption.

2. Compliance with Conditions Specified in the Exemption Notification:
The adjudicating Commissioner examined the case and concluded that M/s. AASPL did not use the helicopter as a private aircraft and complied with the permit granted by DGCA. The Commissioner dropped the proceedings, holding that there was no post-import contravention and the exemption was correctly availed. The Committee of Chief Commissioners authorized an appeal against this order, arguing that M/s. AASPL did not qualify as an operator for non-scheduled (charter) services due to the lack of a published tariff and proper permit.

3. Post-Importation Monitoring and Usage of the Imported Aircraft:
The respondents argued that the customs authorities have no power to impose additional conditions beyond those specified in the exemption notification. They contended that the DGCA, which regularly renewed their permit, did not find any violations. The customs authorities are responsible for ensuring compliance with pre-import conditions, but post-import usage monitoring falls under the DGCA's jurisdiction. The exemption notification did not specify any post-import conditions, and thus, the customs authorities could not take unilateral action.

4. Grounds for Appeal by the Department and Objections Raised by the Respondents:
The department's appeal raised new grounds not included in the original show-cause notice, which is not permissible. The respondents fulfilled pre-import conditions by obtaining the necessary permit and furnishing an undertaking. The exemption notification did not require a published tariff for non-scheduled (charter) services, and the DGCA's clarifications supported the respondents' compliance. The appeal's argument that the respondents' permit for non-scheduled (passenger) services did not authorize charter services was found to be without merit, as the exemption covered both categories.

Conclusion:
The Tribunal concluded that M/s. AASPL fulfilled the pre-import conditions and the exemption was correctly granted. The customs authorities cannot impose additional post-import conditions not specified in the exemption notification. The appeal by the department was dismissed, and the cross-objection by the respondents was disposed of. The Tribunal suggested that if the government intends to restrict the use of exempted aircraft by group companies or require post-import monitoring, specific conditions should be included in the exemption notification.

← Previous Next →