2022 (5) TMI 1432 - AT - Customs

Principles of doctrine of merger - pre-defined locations between the two or more places have not been published nor operated according to a published time- table - time and place of departure/arrival is uncertain - Violation of one of the conditions mentioned at serial no. 104 of notification no. 21/2002-Cus dated 01.03.2002 as amended by notification no. 61/2007- Cus dated 03.05.2007 - Aircraft/Helicopter imported for non-scheduled operation passenger service can be used for non-scheduled charter service or not - non publication of tariff as prescribed in notification for non-scheduled charter services can be said to be violative of Explanation (c) of Condition No. 104 of the notification dated 03.05.2007 or not - aircraft imported by the appellant can be classified as private aircraft or not - validity of the permission granted by Director General of Civil Aviation in the absence of cancellation of the said approval - requirement for importer to issue air-tickets for providing non-scheduled operation passenger service to comply with the conditions of the non-scheduled operation passenger service - New Civil Aviation Requirement 2010 CAR 2010 has retrospective effect or not - applicability of decision rendered in King Rotors 2011 (6) TMI 276 - CESTAT MUMBAI in view of specific findings in King Rotors that the importer therein did not provide non- scheduled operation passenger service but a third party had provided the non-scheduled operation passenger service and whether the Tribunal in King Rotors was correct in holding the decision of the Tribunal in C.C. New Delhi vs. Sameer Gehlot 2010 (11) TMI 85 - CESTAT NEW DELHI is per incuriam. HELD THAT - List the appeal for hearing on June 08 2022. The parties may submit additional submissions in two weeks.

Summary

Issues Involved:
1. Doctrine of merger and reference to Larger Bench
2. Violation of conditions under customs notifications
3. Use of imported aircraft for different services
4. Classification of imported aircraft as "private aircraft"
5. Examination of validity of permissions by Customs Authority
6. Mandatory issuance of air-tickets for non-scheduled operation passenger service
7. Retrospective operation of Civil Aviation Requirement, 2010
8. Applicability of previous judgments in the current case

Issue 1 - Doctrine of Merger and Reference to Larger Bench:
The Tribunal framed questions regarding the doctrine of merger and the reference to a Larger Bench due to the dismissal of a Civil Appeal. The questions revolved around whether the reference to the Larger Bench had become infructuous and the application of the principles of doctrine of merger.

Issue 2 - Violation of Conditions under Customs Notifications:
The appellant was alleged to have violated conditions mentioned in customs notifications regarding the operation of aircraft. The issue focused on whether the appellant breached specific conditions related to the publication of predefined locations and timetables.

Issue 3 - Use of Imported Aircraft for Different Services:
The question arose whether an aircraft imported for non-scheduled operation passenger service could be used for non-scheduled charter service or vice versa. Additionally, the non-publication of tariffs for non-scheduled charter services was examined for compliance with notification conditions.

Issue 4 - Classification of Imported Aircraft as "Private Aircraft":
The classification of the imported aircraft as a "private aircraft" was disputed. The approval granted by the Director General of Civil Aviation for importing and using the aircraft for non-scheduled services was a crucial point of contention.

Issue 5 - Examination of Validity of Permissions by Customs Authority:
The Customs Authority's authority to scrutinize the permissions granted by the Director General of Civil Aviation was questioned. The issue centered on whether the Customs Authority could assess the validity of permissions without explicit cancellation.

Issue 6 - Mandatory Issuance of Air-Tickets for Non-Scheduled Operation Passenger Service:
The requirement for the importer to issue air-tickets for providing non-scheduled operation passenger service was deliberated. Compliance with the conditions of non-scheduled operation passenger service was a key aspect of this issue.

Issue 7 - Retrospective Operation of Civil Aviation Requirement, 2010:
The retrospective operation of the Civil Aviation Requirement, 2010 was analyzed. The applicability of the CAR, 2010 and its retrospective effect were scrutinized in light of previous judgments.

Issue 8 - Applicability of Previous Judgments in the Current Case:
The relevance of previous judgments, particularly the decision in King Rotors, was debated. The Tribunal assessed whether the findings in previous cases were applicable to the current situation, considering specific differences and the correctness of earlier decisions.

The appeal was listed for hearing on June 08, 2022, allowing parties to submit additional submissions within two weeks. The judgment encompassed a wide array of complex legal issues surrounding customs notifications, aircraft usage, permissions, and retrospective application of aviation regulations, requiring detailed analysis and interpretation by the Tribunal.