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2018 (10) TMI 1422 - AT - CustomsImport of Aircraft - violation of import conditions - whether the appellant importer of aircraft have violated the post imports condition for availing the concession in the custom duty under N/N. 21/2002-Cus. as amended by N/N. 61/2007-Cus. read with condition No. 104 rendering it liable to payment of duty on import of aircraft? - scope of SCN. Held that - It is evident that the appellant have not used the said aircraft in contravention of the permit granted by the DGCA to operate as a NSOP. Admittedly DGCA has not cancelled the permit and admittedly same stands renewed from time to time - in the precedent order of this Tribunal in Global Vectra 2015 (6) TMI 151 - CESTAT MUMBAI it has been held that issue of ticket is not an essential condition not required in case of charter operation. Admittedly appellant have operated their aircraft mainly for charter operation which is permissible under the NSOP. The ld. Commissioner has traveled beyond the scope of the show cause notice as the duty was demanded under Section 28 of the Act whereas the demand under the said Section has been dropped but duty has been confirmed by way of enforcement of the bond in absence of any such proposal in the show cause notice the demand is bad and fit to be set aside. The appellant had rightly availed the benefit of concession/ exemption under Notification No. 21/2002 Cus. read with Notification No. 61/2007-Cus as amended - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Violation of post-import conditions under Notification No. 21/2002-Cus. as amended by Notification No. 61/2007-Cus. 2. Use of aircraft for private purposes instead of non-scheduled operations. 3. Mis-declaration of the value of the aircraft at the time of import. 4. Imposition of duty, penalties, and redemption fine. 5. Authority of the Customs Commissioner to enforce the bond. Issue-Wise Detailed Analysis: 1. Violation of Post-Import Conditions: The primary issue was whether the appellant violated post-import conditions for availing customs duty concession under Notification No. 21/2002-Cus. as amended by Notification No. 61/2007-Cus. The appellant imported an aircraft under a Non-Scheduled Operator Permit (NSOP) and furnished the necessary undertaking. However, the Revenue alleged that the aircraft was used for private purposes by Reliance ADA Group Pvt. Limited (RADAGPL), violating the conditions of the notification. 2. Use of Aircraft for Private Purposes: The Revenue's intelligence suggested that the aircraft was used privately by RADAGPL, which would disqualify it from the duty exemption. The appellant argued that the aircraft was used for non-scheduled charter services, as evidenced by agreements and DGCA permits. The Tribunal found that the appellant complied with the permit conditions and used the aircraft for charter operations, which is permissible under NSOP. The DGCA had not canceled the permit, which was renewed periodically. 3. Mis-Declaration of Value: The show cause notice alleged mis-declaration of the aircraft's value, originally invoiced at US$42,000,000 but declared at US$35,721,720. The Commissioner dropped the undervaluation charge, and the Tribunal did not find sufficient grounds to uphold this allegation. 4. Imposition of Duty, Penalties, and Redemption Fine: The Commissioner ordered the confiscation of the aircraft with an option to redeem it on payment of a fine of ?30 crores and confirmed a reduced duty of ?35,78,01,888. A penalty of ?10 crores was imposed on the appellant, and ?10 lakhs each on two individuals under Section 112(a) read with Section 140 of the Customs Act. The Tribunal found that the Commissioner had erred by traveling beyond the scope of the show cause notice, which demanded duty under Section 28 of the Act. The demand was confirmed by enforcing the bond, which was not proposed in the show cause notice. 5. Authority to Enforce the Bond: The Tribunal held that the Customs Commissioner is not empowered to enforce the bond directly. Such enforcement should be through legal proceedings in a court of law. The Tribunal cited the Supreme Court ruling in Metro Exports vs. CC, Cochin, supporting this view. Conclusion: The Tribunal concluded that the appellant had rightly availed the benefit of the customs duty exemption under Notification No. 21/2002-Cus. read with Notification No. 61/2007-Cus. The impugned order was set aside, and the appellant was entitled to consequential relief. The adjudicating authority was directed to release the Bank Guarantee and bond within two weeks from the receipt of the order. The appeal was allowed, and the penalties and duty demands were annulled. (Pronounced on 15.10.2018)
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