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TMI Blog2019 (11) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... ght operation from Kolkata to Dhaka and from Dhaka to Kolkata from NSSCBI Airport, Kolkata. The Aviation Turbine Fuel (hereinafter referred to as "ATF") in tank of the aircraft is recorded by engineers of the appellant at the time of conversion of the flight for international run as well as on reversion into domestic run. Accordingly, a detailed report is submitted with the Customs authorities. As per the procedure, the Customs authorities certify the quantity of ATF before departure to international locations as well as quantity of ATF before departure to domestic after international run. As prescribed by the Ministry of Finance, letter issued vide F. No. 40/2/63-Cus.IV, dated 24-4-1971; the appellant had been paying Customs duty on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain quantity is leftover in the tanks of aircraft. Accordingly, the freight element is not attributable to such fuel as there is no transport of fuel as cargo for the levy of freight. In this regard, he found that the Tribunal in the case of M/s. Interglobe Aviation Ltd. v. Commissioner of Customs, IGI Airport, New Delhi as reported in 2017-TIOL-3169-CESTAT-DEL = 2018 (360) E.L.T. 170 (Tri. - Del.) has held as follows. "Admittedly, the remanant fuel is construed to be an imported item for the purpose of customs duty. In the importation of such remanant fuel, we could not discern any separate freight element, which can be added to the assessable value. The fuel in tank is part of aircraft in operation. "No freight element is attributable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be quashed. (ii) That the appellate Authority has failed to appreciate the evidence on record in proper perspective, and therefore the findings recorded by the appellate authority are improper and legally untenable. The appellate authority has failed to consider the material facts on record, legal provisions, gravity of allegations which evidently and clearly show that revenue's interests have been prejudiced by the party causing loss to the national exchequer. (iii) Commissioner of Customs (Appeals) in the Order-in-Appeal Nos. KOL/Cus(Air-Port)/AA/529/2018, dated 6-3-2018, KOL/CUS(Air-Port)/AA/535/2018, dated 6-3-2018 and KOL/CUS)Air-Port)/AA/536/2018, dated 6-3-2018 has remanded the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the aircraft requires ATF for its propulsion. As per the Civil Aviation Regulation 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 remanant fuel is construed to be an imported item for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrive at the value. The endeavour is to have closest proximity with the actual price. Dealing with addition of loading and handing charges at 1% on notional basis as per Rule 9 of Valuation Rules, the Apex Court held that when the actual costs 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 leftover fuel in the tank of an operating aircraft. Hence, there is no question of such freight being "not ascertainable" and hence addition of 20% notional freight. 8. In view of their observation, we find there is no justifiable reason to interfere in the order of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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