2007 (12) TMI 126 - AT - Central Excise

Not. 46/94 entitles supply of Aviation Turbine Fuel at concessional rate of duty only to those flights which are foreign going flight exemption cannot be denied merely because impugned foreign flight land at intermediate port (or airport in India) before starting international journey only because of such landing at Indian airport, impugned flight which carries foreign bound passengers, cannot be considered as domestic flight Exemption allowable to Fuel under not. 46/94

Summary

Issues:
- Supply of Aviation Turbine Fuel (ATF) under concessional rate of duty to flights of Air India for domestic and foreign runs.
- Allegation of supplying ATF without a trip to foreign Airport on flights plying within India.
- Interpretation of Notification No. 46/94-C.E. regarding reduced rate of duty for flights operating to foreign destinations.
- Consideration of flights touching Indian and foreign destinations for concessional duty eligibility.
- Application of previous Tribunal judgment in determining concessional rate of duty eligibility.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai involved the supply of Aviation Turbine Fuel (ATF) by the appellant to flights of Air India, falling under Chapter 2710.90 of Central Excise Tariff, at a concessional rate of duty. The appellant supplied ATF to flights operating between Mumbai and various Indian cities without a trip to foreign airports on their voyage. The adjudicating authority confirmed the demand for differential duty, imposed penalties, and directed payment of interest based on the show cause notice. The appellant contended that the flights in question operated between Mumbai-London-Ahmedabad-Mumbai and Calicut-Mumbai-Dubai-Calicut-Mumbai, with the flights originating in India and returning after touching foreign destinations.

The learned Counsel for the appellant argued that the flights' operation to foreign destinations was not disputed, emphasizing that the flights' origin from Indian locations and return were crucial. On the other hand, the Jt. CDR contended that the appellant did not indicate the flights' operation to foreign destinations in the AR-4 form, a requirement for availing the reduced duty rate under Notification No. 46/94-C.E. The Tribunal examined the submissions and records, noting that the flights originated in India, traveled to foreign destinations, and returned to India as per the flight schedule. The Tribunal found that flights touching Indian cities were in furtherance to the foreign destinations and could not be considered domestic runs.

The Tribunal referenced a previous decision where it held that the concessional duty rate could not be denied based solely on changes in flight details, emphasizing the definition of Foreign Going Aircraft for eligibility. Relying on this precedent and the facts of the case, the Tribunal concluded that the impugned order was unsustainable. Consequently, the Tribunal set aside the order and allowed the appeal, citing the previous judgment and the merits of the case as reasons for its decision.