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TMI Blog2020 (1) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) vide order dated 13.05.2005. Hence, this present appeal before us. 2. The ld. Advocate appearing for the appellant submits that:- (i) Appellant supplied Aviation Turbine Fuel (ATF), falling under Chapter 2710.90 of Central Excise Tariff, to aircrafts operated by Air India, as Domestic Extension Flight, between two Indian airports, at Kolkata and Mumbai, having connection for the passengers from USA, and UK on the inbound, and on the outbound, to the destinations to Europe, Middle East, UK, USA. (ii) Central Board of Excise and Customs issued a Circular No. 33/2002-CUS dated 25.06.2002, clarifying the earlier Circular No. 65/2001-CUS dated 19.11.2001. At the time of hearing, before the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Ld. DR justifies the impugned order and submits that the appellant did not contest their entitlement of concessional rate of duty before the Commissioner (Appeal) and therefore, they cannot justify their claim at the stage of Tribunal. In this regard, he also submitted a written submission and prayed that since the Tribunal is not empowered to consider the issue on merits, i.e. entitlement to avail the notification benefits, as the same was not argued before the first appellate authority, the appeal filed by assessee be rejected without going into the merits of the case. 4. We have carefully considered the submission made by both the sides and perused the appeal records. 5. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. We also find that the issue is no more res-integra in view of the Tribunal's decision in the appellants own case 2008 (225) ELT 250 (Tri-Mumbai) which was maintained by Supreme Court 2015 (320) ELT A-39 (S.C.). The relevant paragraph of the said decision are reproduced below: 5. We find strong force in submission of the learned Counsel that the issue is covered by the decision of the Tribunal in the appellants own c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agitated before the First Appellate Authority, we do not find any merit in the said submission. It is a settled position that legal point can be raised before the Tribunal even if it is not raised before the lower authorities. The Tribunal is Sonam Clock Pvt. Ltd. Vs. CCE, Rajkot 2012 (278) ELT 263 (Tri-Ahmd.) has observed as below:- 7. At the outset, we may first hold that submission made by the learned SDR that the appellant had not raised this legal point before the adjudicating authority or before the first appellate authority and hence they should not raise the same before the Tribunal, is an incorrect proposition, as this is a question of law i.e. benefit of provisions of law as it stands in the statute on the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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