2013 (11) TMI 755 - AT - Customs

Import of helicopter - non-scheduled air transport services (passenger) - Misuse of helicopter - Held that - appellant had undisputedly imported the helicopter for non-schedule operator service (passenger) by availing benefit of Notification No. 21/2002-Cus., giving an undertaking for adhering to condition No. 104 of the said notification. - there are two views on the very same issue viz. in the case of COMMISSIONER OF CUSTOMS, NEW DELHI Versus SAMEER GEHLOT 2010 (11) TMI 85 - CESTAT, NEW DELHI and KING ROTORS & AIR CHARTER P. LTD. Versus C. C. (ACC & IMPORT), MUMBAI 2011 (6) TMI 276 - CESTAT, MUMBAI - on an identical issue, when two views are possible and the Condition No. 104 having been substituted, the appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved. - Stay granted.

Summary

Issues involved:
Waiver of pre-deposit of Customs Duty, interest, and penalty on the appellant-firm and individuals, interpretation of conditions under Notification No. 21/2002-Cus, differing views by Tribunal, applicability of subsequent notifications, permission for non-schedule operation services, intermixing charter services with non-scheduled passenger services, relevance of judgments in similar cases.

Analysis:

1. Waiver of Pre-deposit:
The Stay Petitions were filed seeking waiver of pre-deposit of Customs Duty, interest, and penalties. The issue revolved around the recovery of differential Customs duty from the main assessee who imported a helicopter under Notification No. 21/2002-Cus. The Revenue contended that the appellant did not adhere to the conditions of the notification as they hired out the helicopter for charter services instead of operating passenger services as required by the notification.

2. Interpretation of Conditions under Notification:
The appellant's counsel argued that the condition relied upon by the Revenue had been substituted by a subsequent notification in 2011, allowing for intermixing the usage of imported aircraft for non-scheduled passenger services or charter services. Reference was made to Tribunal decisions favoring the assessee's interpretation, including the case of CC v. Sameer Gehlot. Additionally, a letter from the Civil Aviation Department clarified that permit holders for non-schedule passenger operation services could undertake charter operations as well.

3. Differing Views by Tribunal:
The Tribunal noted conflicting views on the issue, with one case supporting the assessee's position and another taking a contrary view. The matter was pending before the Hon'ble Supreme Court, indicating the legal complexity and uncertainty surrounding the interpretation of the relevant conditions.

4. Applicability of Subsequent Notifications:
Considering the substitution of Condition No. 104 by a subsequent notification and the existence of divergent views within the Tribunal, the appellant was deemed to have made a prima facie case for the waiver of pre-deposit amounts. The Tribunal found that when two views are possible on an identical issue, and with the change in conditions, the appellant's request for waiver was justified.

5. Permission for Non-schedule Operation Services:
The Revenue highlighted instances where the appellant chartered the aircraft for individuals/companies, emphasizing the importance of adhering to civil aviation requirements. They relied on the judgment of the Tribunal in a specific case to support their argument.

6. Decision and Order:
After considering the submissions and records, the Tribunal granted the applications for waiver of pre-deposit and stayed the recovery of the amounts involved until the appeal was disposed of. This decision was based on the legal complexity, differing interpretations, and the appellant's prima facie case for waiver in light of the substituted condition and conflicting Tribunal views.

This detailed analysis of the judgment highlights the key legal issues, arguments presented by both sides, relevant notifications, Tribunal decisions, and the ultimate decision of the Appellate Tribunal CESTAT AHMEDABAD granting the waiver of pre-deposit and staying the recovery of amounts pending appeal.