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TMI Blog2015 (6) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... nsisting for production of such declaration made by the State Government and hence the contention raised by the petitioner's counsel on the vires of the said notification is without any substance. Validity of assessment orders - Held that:- in respect of certain transactions made to certain airlines there are declarations produced and in respect of other transactions of the very same airline, it may not be produced is the submission of the petitioner's counsel. It is also noted that in respect of airlines of certain foreign countries no declaration may have been produced. This aspect would have to be examined and there may be certain cases where the declarations have not been produced with regard to certain aircrafts. Petitioner would have to be given an opportunity to produce evidence pointing out the list of countries which are parties to the convention or which have entered into agreements with India and in respect of whose aircrafts thesale of ATF and lubricants have taken place to the satisfaction of the third respondent/authority. If the third respondent is satisfied on the material to be produced by the petitioner, then it could consider the grant of exemption in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plement the agreements entered into by India with foreign countries, pursuant to Convention on International Civil Aviation held at Chicago in the year 1944. The Act received assent of the President of India on June 11, 2002 and published in the Gazette of India, extraordinary Part II on June 12, 2002. Section 3 of the Act prescribes that where in pursuance of the convention or agreement with any country or countries, it is necessary to grant exemption from levy of taxes and duties on fuel and lubricants filled into receptacles forming part of any aircraft or any other country or countries under any law of a State or Union territory, the Central Government may, by notification in the Official Gazette, make such provisions as may be necessary for giving effect to the convention or agreement and thereupon the said provision, notwithstanding anything contrary contained in any other law, shall in such application have force in India. That pursuant to the Central Act, 2002, the Ministry of Civil Aviation, Government of India in exercise of the power conferred under section 3 of the said Act issued notification dated November 18, 2002 notifying that fuel and lubricants filled into recept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines are available in the invoices raised by the petitioner and information would be sufficient to conclude that the sale has been made to foreign airlines or foreign aircrafts and that no further declaration would be necessary to evidence that fact. Relying on the invoices raised by the petitioner in respect of certain airlines, he contended that the name of the purchaser of ATF is evident in the invoices and that would be sufficient information for the assessing officer to conclude that the petitioner is entitled to exemption under the provisions of the Central Act and KST Act, 1957 and notification at annexure E and therefore the further declaration is not necessary. Of course, learned counsel for the petitioner also candidly admitted that prior to 2008-09 declarations were in fact given by the petitioner pursuant to notification dated December 3, 2003 and for the subsequent years also may have submitted, but for the assessment year 2008-09 in respect of certain airlines, it has not been submitted by the petitioner which cannot be denied its right to seek exemption solely and in view of the impugned notification dated December 3, 2003. He contended that when the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, notwithstanding anything contrary contained in any other law, shall in such application have the force of law in India. Notification dated November 18, 2002 (annexure C) was issued for the purpose of implementation of section 3 of the Act in respect of the exemption from levy of taxes and duties in India whether levied by the Central Government or State Government as the case may be in the matter of sale of fuel and lubricants to aircrafts registered in other countries which is a party to the convention and which has entered into agreements with India and operating scheduled or non-scheduled international air services to or from India. After issuance of the impugned notification dated November 18, 2002, annexure D, communication was issued by the Ministry of Petroleum and Natural Gas, Government of India to all State Governments for implementation of annexures B and C. On receipt of the said communication, the State Government issued notification dated December 3, 2003, pursuant to section 8A of the KST Act, 1957 granting exemption of tax payable by a dealer registered under the said Act on sale of ATF and lubricants to aircrafts registered in foreign countries which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Therefore I do not find that notification dated December 3, 2003 is illegal, or it lacks competence and it is contrary to the provision of the Central enactment. On the contrary, the requirement of issuance of declaration by a purchaser of ATF and lubricants, i.e., aircraft of a foreign country which is a party to the Convention on International Civil Aviation or which has entered into air services or air transport agreement with India and operating international air services to or from India would get endorsed. Therefore there is a distinct purpose in insisting for production of such declaration made by the State Government and hence the contention raised by the petitioner's counsel on the vires of the said notification is without any substance. 9. Now coming to the validity of the assessment order dated December 19, 2011, it is in respect of the assessment year 2008-09. Learned counsel for petitioner submits that in respect of that assessment year with regard to certain airlines declarations have been submitted but with regard to other airlines, declaration could not be submitted. He would submit that the names of the foreign airlines are noted in the invoices and als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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