2010 (1) TMI 554 - AT - Customs

Present Misc. Application is calling for modification of the stay order passed by the Tribunal - We make it clear that prima facie case was considered at the stage of hearing of stay application to protect interest of Revenue giving due weight to undue hardship that may be caused by stay order. The decision based on factual finding of authority and argument of both sides. We have very little scope to consider the Misc. Application as to whether the event subsequent to stay hearing altogether weighs heavily in favour of appellant. We find no reason to vary the prima facie view we have taken since no error of law nor error of fact was committed by the Tribunal while passing the order and a decision on the altogether new issue arose out of clarification of DGCA shall amount to review of decision on an additional and fresh evidence not borne by record.

Summary

Issues:
1. Modification of stay order passed by the Tribunal.
2. Interpretation of licensing authority's permission for non-scheduled passenger service.
3. Consideration of subsequent events and DGCA clarification.
4. Scope of review by the Tribunal.
5. Extension of the date of payment for compliance.

Analysis:

Issue 1: Modification of stay order
The appellant sought modification of the stay order, arguing that the adjudication had exceeded the show cause notice. The Tribunal considered the clarification issued by DGCA Authorities, stating that a non-scheduled operator could conduct chartered operations for transportation by air. The Tribunal had initially focused on the use of the aircraft for passenger service only. The Revenue argued that the licensing authority permitted use for non-scheduled passenger service only, citing previous judgments. The Tribunal emphasized that the clarification was not part of the original case and could not be reconsidered without a review.

Issue 2: Interpretation of licensing authority's permission
The Tribunal examined the licensing terms and the appellant's undertaking to use the chartered flight for non-scheduled passenger service only. The DGCA clarification did not alter the original licensing conditions. Customs duty exemption was based on the original documents, not the subsequent clarification. The Tribunal maintained that the stay order was based on factual findings and protected the Revenue's interests.

Issue 3: Consideration of subsequent events and DGCA clarification
The Tribunal acknowledged the subsequent events but concluded that any reconsideration based on new evidence would amount to a review, which was not within its power. The Tribunal emphasized that the stay order was based on existing facts and arguments presented during the hearing.

Issue 4: Scope of review by the Tribunal
The Tribunal clarified that it did not have the power to review its own order unless mandated by statute. It dismissed the modification application to maintain the settled position of law and avoid unsettling established principles.

Issue 5: Extension of the date of payment for compliance
After rejecting the modification application, the Tribunal granted a four-week extension for compliance to prevent undue hardship to the appellant. The extension was a reasonable measure considering the circumstances of the case.

In conclusion, the Tribunal upheld the original stay order, emphasizing the importance of factual findings and legal principles in decision-making. The judgment highlighted the limitations on the Tribunal's power to review its own orders and the need to balance interests while ensuring compliance with legal requirements.