2020 (1) TMI 484 - AT - Central Excise

Concessional rate of duty - supply of Aviation Turbine Fuel (ATF) falling under Chapter 2710.90 of the First Schedule to Central Excise Tariff to Aircraft operating through Kolkata Airport both on domestic and foreign run - it is alleged that the said ATF was supplied to flights operated by Air India for plying between Kolkata and Mumbai in India without a trip to foreign Airport on their voyage and therefore, the appellant is not entitled to concessional rate of central excise duty as provided in Notification no. 46/94-CE dated 22.09.2014. HELD THAT - On perusal of Circular 65/2001-Cus. dated 19.11.2001 as clarified by Circular No. 33/2002-Cus dated 25.06.2002, it is found that the Circular makes aircraft eligible for duty benefits as available to the foreign going aircraft, even though the aircraft touches two Indian ports and that mere change in the flight numbers will alter the situation. Appellant has also submitted letter dated 30.08.2001 issued by Air India confirming that the flight AI-680/681 is an international flight having connections for passengers from USA/UK on the inbound and on the outbound to destinations to Europe/Middle East/UK/USA etc. The appellant cannot be deprived of the benefits extended in the notification and therefore, the impugned order confirming demand of duty, interest and penalty cannot sustain and hence, the same is set aside - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Concessional rate of central excise duty on Aviation Turbine Fuel (ATF) supplied to flights operated by Air India between Kolkata and Mumbai.
2. Applicability of Circular No. 33/2002-CUS dated 25.06.2002.
3. Entitlement to avail notification benefits.
4. Legal point raised before the Tribunal despite not being argued before the First Appellate Authority.

Analysis:

1. The appellant supplied ATF to Air India flights between Kolkata and Mumbai, claiming concessional duty rate under Notification no. 46/94-CE. The dispute arose as the ATF was allegedly supplied for flights within India without a trip to a foreign airport, questioning the entitlement to the concessional duty rate. The adjudicating authority upheld the duty demand, which was later confirmed by the Ld. Commissioner (Appeal I) but with reduced penalty. The appellant argued that the issue was covered by a Tribunal's earlier decision upheld by the Supreme Court, affirming the entitlement of domestic extended flights to concessional duty rates.

2. The Circular No. 33/2002-CUS dated 25.06.2002 clarified that duty benefits apply to domestic extension flights between two Indian airports without a trip to a foreign airport, irrespective of flight number changes. The Tribunal found that the appellant's flights met the criteria for duty benefits as per the Circular and the previous Tribunal's decision, supported by a letter from Air India confirming the international nature of the flights.

3. The Tribunal emphasized that legal points can be raised before them even if not argued before lower authorities. Citing precedent, the Tribunal rejected the argument that the appellant could not raise the entitlement to duty benefits at this stage. The Ld. D. R. did not dispute the appellant's eligibility for the notification benefits, as clarified by the CBEC and upheld by the Tribunal and the Supreme Court. Consequently, the Tribunal set aside the impugned order confirming duty demand, interest, and penalty, allowing the appeal in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the appeal and providing consequential relief as per law, highlighting the importance of legal entitlements and the right to raise legal points before the Tribunal, even if not previously argued before lower authorities.