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TMI Blog2019 (1) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... lessor, and the owner of the aircraft, in order to safeguard its interest in the property, was compelled to take measures to fly back the aircraft. For this purpose, it facilitated the entry of an aircraft engine. At that stage, when the engine was flown in, M/S Kingfisher Airlines Ltd., was the importer. The engine was promptly detained; initially the Service Tax Authorities sought to exact the amounts allegedly due. Later, those proceedings were dropped. The Customs authorities, however, moved and detained the engine. At that stage, the petitioner, which owned the engine approached this Court by filing the W.P.(C) 2937/2013. That writ petition was disposed of by an order dated 11.02.2014. To avoid deterioration of functionality of the engine, the petitioner was permitted to furnish a bank guarantee in the sum of Rs.8 crores, out of which Rs.1 crore was to be deposited within six weeks of the order, directing release of the engine. The Customs Authorities were enjoined to adjudicate the proceedings and pass appropriate orders. The petitioner was also directed to comply with all the pre-conditions and necessary formalities, including filing the bill of lading to indicate its owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of "Guaranteed Remittance" document. It was submitted that in the peculiar facts and circumstances of this case, the question of remittance did not arise. 6. Learned counsel argues that there was no occasion originally for the goods i.e. the engine to have been brought in, but were in fact imported by M/s Kingfisher Airlines initially, only for the purpose of flying back the aircraft, which was lying unused. The petitioner as the owner was anxious and concerned to safeguard its property, and accordingly brought in the engine. The moment the engine's purpose was fulfilled i.e. the aircraft was to be taken back, it was permitted by the authorities to export it. It was further stated that the engine was always identifiable since it never left the customs bonded warehouse and the aircraft as a matter of fact was flown back with another engine. Learned counsel submits that since initially, the engine brought in was imported by M/s Kingfisher Airlines, formalities by way of amendment of the bill of entry was needed, which was complied with. Thereafter on 24.03.2014, the Additional Commissioner permitted the re-export. Learned counsel for the petitioner relies upon the Customs Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... craft back to where it came from. 9. The first proceedings preferred before this Court in W.P.(C) 2937/2013 resulted in the release of the aircraft and imposition of various conditions including furnishing of bank guarantee etc. Those orders were modified and the petitioner paid Rs.17.09 crores. The Customs Authorities assessed the Show Cause Notice and raised the demand; they also imposed penalty and sought to confiscate the goods i.e. the aircraft engine. Eventually CESTAT set aside the penalty and confiscation. Even at that stage, the Customs Authorities were recalcitrant and did not refund the penalty amount, which had been deposited way back in 2014. The amounts were released to the petitioner eventually after the direction of this Court in W.P.(C) 6544/2018. 10. If one sees the matter from the above aspects, the issue which this Court has to address itself to is whether the petitioner can claim entitlement to the duty drawback under Section 74 of the Customs Act, which reads as follows: "74. Drawback allowable on re-export of duty-paid goods.- (1) When any goods capable of being easily identified which have been imported into India and upon which 1[any duty has been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aps deals with exports envisioned in the course of trade, as evident from the emphasis placed upon "export includes the taking or sending out of goods by land, sea or air, on consignment or by way of sale, lease, hire-purchase, or under any other arrangement by whatever name called". This Court is of the opinion that further discussion on this is not necessary, as the matter ultimately turns on the facts of the present case. 12. The exemptions under the original Regulation 4, by and large envisioned non-commercial export. Significantly, Regulation 4 (f) has dealt with the export of aircraft or aircraft engine and spare parts but for "overhauling and/or repairs abroad subject to their re-import into India". The other condition was goods imported free of cost on re-export basis. The amendment by Regulation 4 generally empowered RBI subject to the terms and conditions stipulated by it to promote the export. 13. In case the Revenue's stand were to be accepted, the petitioner would be bound to file a Guaranteed Remittance Declaration, which in turn would imply that it would remit back the amounts. The declaration is to ensure that the exporter [i.e. Indian resident by Regulation 7 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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