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TMI Blog2010 (4) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... HPL) imported a Bell helicopter each availing exemption in terms of Sl. No. 347B of the table appended to Notification No. 21/02-Cus. dated 1-3-2002 and Notification No. 6/06-C.E. The Bills of Entry were filed in April 2008 and December 2007 respectively. The exemption extended at Sl. No. 347B of the table is subject to the following conditions :- 104.If : (i) the aircrafts are imported by an operator who has been granted approval by the competent authority in the Ministry of Civil Aviation to import aircraft for providing non-scheduled (passenger) services or non-scheduled (charter) services; and (ii) the importer furnishes an undertaking to the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, at the time of importation that:- (a) the said aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services as the case may be ; and (b) he shall pay on demand, in the event of his failure to use the imported aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under this notification. Explanation :- for the purpose of this ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services. The Commissioner had failed to appreciate that he was not required to consider the definition of non-scheduled (charter) services once the appellants had obtained the necessary permit from the competent authority in the Ministry of Civil Aviation for import of aircraft to provide non-scheduled (passenger) services. Non-scheduled (charter) services were covered by non-scheduled (passenger) services. This was obvious from para 9.2 of the Civil Aviation Requirement (CAR). That condition did not prohibit a permit holder for non-scheduled (passenger) services from running non-scheduled (charter) services. The requirement of a non-scheduled (charter) services operator having a published tariff considered by the Commissioner to confirm the demands was not a ground raised in the show-cause notice. The Commissioner wrongly held that the para 9.2 of the CAR which provides for use of the aircraft for transport of persons, mail or goods was a provision for such occasional use . The Commissioner wrongly held that non-scheduled (passenger) services should be one that satisfies all the elements of scheduled (passenger) services except the element relating to scheduling. The Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit of 50% of the duty demanded in both the Impugned orders in the Stay Orders cited. 6. We have carefully perused the case records and the submissions made by both sides. We find that the dispute relates to admissibility of exemption in terms of Sl. No. 347B of the Notification No. 21/02-Cus. and Notification No. 6/06-C.E. on identical conditions. The conditions required to be satisfied are reproduced in paragraph 2 of this order. The appellant KRACPL had placed the imported helicopter (of value Rs. 31,37,94,210) at the disposal of M/s. Heligo Charters Pvt. Ltd. (HCPL) on long term lease under an agreement dated 13-6-2008. HCPL deployed the aircraft for transport of persons and goods of HCPL between Visakpatnam airport or any such mutually agreed airport and their off-shore site. For such transport of persons, HCPL or KRACPL did not issue any tickets for the passengers as prescribed under clause 9.4 of CAR. KRACPL did not have any published tariff for giving the helicopter on charter as envisaged in Explanation (c) of condition 104 of the Notification. The helicopter was not available for use by any person other than HCPL. As per explanation under condition 104 of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner s above reading is apparently appropriate since the para deals with non-scheduled (passenger) operators. KRACPL is a non-scheduled (passenger) operator. Moreover, as per CAR-Part V, the charter operations is defined as under:- Charter operation is an operation for hire and reward in which the departure time, departure locations and arrival locations are specially negotiated with the customer or customer s representative for entire aircraft. No ticket is sold to individual passenger for such operation . From the above the Commissioner found that the charter operations envisaged in para 9.2 of CAR-Part III are to conduct charter for individual flights and not for placing the aircraft on long term basis at the disposal of another party as was done by the appellants. 7. We find that the notification extends two exemptions, which are mutually exclusive. One is for aircrafts imported for providing non-scheduled (passenger) services and the other for providing non-scheduled (charter) services, subject to the approval of the competent authority in the Ministry of Civil Aviation. The appellants are in possession of permit to operate non-scheduled air transport services (pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the applications discussed above. In this case, in addition to challenging the interpretation of the definition of non-scheduled (passenger) services adopted by the Commissioner as erroneous, the appellants have urged the plea of limitation. We find from the records that there is no charge of suppression of facts, fraud or wilful misstatement etc. against the appellants in the impugned order. The demand is confirmed as proposed in the show-cause notice issued beyond the normal period on the basis that the appellants had executed a bond for the differential duty involved. We find from the show-cause notice that the undertaking furnished by the assessee had been cancelled. Ld. Counsel for the appellants submitted that there is no separate bond. This submission is not contested. In the circumstances, we note that the appellants have made a strong prima facie case against the demand on limitation. Accordingly, it is ordered that there shall be complete waiver of pre-deposit of the dues confirmed against UHPL and penalty imposed on Capt. Shri Uday Shankar Gelli and stay of recovery thereof pending disposal of the appeals. (Pronounced on 16-4-10) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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