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TMI Blog2018 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. - Custom Appeal No. 50002 of 2018 - Final Order No. 51343/2018 - Dated:- 10-4-2018 - Mr. Justice (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Sh. Manoj Arora Sh. Sidharth Shankar, Advocates for the appellant Sh. A. K. Singh, AR for the respondent Per: Justice ( Dr. ) Satish Chandra: The present appeal is filed against the order-in-original No. 257/Adj/ 2017 dated 31.10.2017 passed by the Commissioner of Customs, New Delhi. 2. Brief facts of the case are that the appellant is engaged in air transport business both in domestic and international sector. They operate some of their air crafts in domestic sector and continue the service in international sector also. The Aviation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the Civil Aviation 6 Regulating requirements and also for safety, aircraft caries adequate amount of fuel in its flight. The consumption of fuel depends on various factors. Factually, when the aircraft completes the inward journey to reach the Indian Airport, certain quantity of fuel is left in the tanks. We are not in agreement that there should be a freight element attributable to such fuel in the tank. In other words, the aircraft did not transport the fuel as a cargo or goods for the purpose of freight. Such interpretation will be a result of hyper-technical approach to the facts of the case. Admittedly, the remnant fuel is construed to be an imported item for the purpose of customs duty. In the importation of such remnant fuel, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of loading and handling charges at 1% on notional basis as per Rule 9 of Valuation Rules, the Apex Court held that when the actual cost towards handling charges are available, notional addition is not legally tenable. It was held to be violative of Article 14 of the Constitution. In the present case, there is no freight involved with reference to left over fuel in the tank of an operating aircraft. Hence, there is no question such freight being not ascertainable and hence addition of 20% notional freight. 9. We also note that as clarified by the Commissioner, Airport, Mumbai vide his instructions dated 20.10.2006 in the absence of invoice for ATF, the price at which Indian Airlines purchase ATF for international flight can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and regularly intimated to the Department has not been varied by the Revenue. No loss of revenue has been alleged except for non-addition of notional fright in the value of ATF. As we have held above, such notional additional is not legally sustainable. In view of these observations, we find there is no sustainable reason for imposing penalty on the appellant under Section 112. 9. In view of the above discussions and analysis, the impugned order is set aside and the appeal is allowed. 5. By following our earlier order (supra), we find no reason to sustain the impugned order and the same is hereby set aside. 6. In the result, appeal filed by the appellant is allowed. ( Dictated and pronounced in the open Court ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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