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TMI Blog2022 (9) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the show cause notice and has, therefore, to be set aside. Thus, the Commissioner could not have confirmed the aforesaid demand since the appellant had not been put to notice on this allegation in the show cause notice. The confirmation of demand by the Commissioner against the appellant for the two Helicopters AZU and AZV and for confiscation of Helicopter AZU with an option to redeem the same on payment of Rs. 5 crores under section 125 of the Customs Act cannot be sustained and is set aside - Appeal allowed. - CUSTOMS APPEAL NO. 415 OF 2009 WITH CROSS-OBJECTION NO. 212 of 2009 AND C/571-572/2009, C/574-579/2009 - FINAL ORDER NO. 50920-50928/2022 - Dated:- 22-9-2022 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Tarun Gulati, Senior Advocate, Shri Kishore Kunal, Shri Manish Rastogi and Ms. Kanak Grover, Advocates for the Appellant Shri PRV Ramanan, Special Counsel for the Department ORDER M/s. Global Vectra Helicorp Ltd. [ the appellant ] has filed this appeal for setting aside the order dated 27.04.2009 passed by the Commissioner of Customs (Preventive), New Customs House, New Delhi [ the Commissioner ] holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishes an undertaking to the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, at the time of importation that:- a. the said aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services, as the case may be; and b. he shall pay on demand, in the event of his failure to use the imported aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under this notification. Explanation. for the purposes of this entry,- (a) operator means a person, organization, or enterprise engaged in or offering to engage in aircraft operation; (b) non-scheduled (passenger) services means air transport services other than scheduled (passenger) air transport services as defined in rule 3 of the Aircraft Rules 1937. (c) non-scheduled (charter) services means services provided by a non-scheduled (charter) air transport operator , for charter or hire of an aircraft to any person, with published tariff, and who is registered with and approved by Directorate General of Civil Aviation for such purposes, and who conforms to the civil avia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een carried without any objection from either the DGCA, who has issued the permit to it, or from the Ministry of Civil Aviation [ MCA ] or from any other authority. 7. The appellant claims that it was using the Helicopters for carrying out non-scheduled (passenger) services which were provided either to regular customers with whom it had entered into contracts or to other customers who had approached the appellant for providing air transport services on a case to case basis. For this purpose, the appellant had entered into several agreements with various companies for carrying out air transportation of persons including for transporting crew of various oil exploration companies such as Oil Natural Gas Corporation, Gujarat State Petroleum Corporation and British Gas Corp. Likewise, the appellant had contracted with Vectra Aviation Pvt. Ltd. [ VAPL ] for Helicopters AZU and AZV for the period August, 2007 to November, 2007 and August, 2007 to December, 2007 respectively for monthly charges of 1,10,000 Euros for minimum commitment of 50 hours and 1100 Euros per hour thereafter for chartering the said Helicopters. The contract with VAPL was a transaction where the appellant earne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P permit by the appellant to VAPL and hence the terms of the undertaking have been violated by the appellant. It was VAPL which had operated the Helicopters for passenger services and it was not shown that VAPL was in possession of a NSOP permit. Therefore, the allegation of the department relating to Helicopters AZU and AZV is sustainable; On sale of Helicopter AZV l . The condition of no sale is not mentioned in the exemption notification and therefore, the sale of Helicopter AZV does not amount to a violation. 9. Thus, while the allegations of violation of conditions of the exemption notification against the Helicopter AZX have been dropped, the Commissioner confirmed the allegations of violation of conditions of the exemption notification against Helicopters AZU and AZV by holding that the NSOP was transferred by the appellant to VAPL. 10. Customs Appeal No. 415 of 2009 has been filed by the appellant against the demands confirmed in respect of Helicopters AZU and AZV. The department has filed Cross-Objection No. 212 of 2009 against the findings recorded by the Commissioner in favour of the appellant. 11. Customs Appeal No s. 571, 572, 574, 575, 576, 577, 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erut [ 2005 (183) ELT 225 (SC) ] and the decision of the Tribunal in Nav Karnataka Steels vs. Commissioner of C. Ex., Belgaum [ 2008 (225) ELT 454 ]; and (iv) Even otherwise, the finding of the Commissioner that NSOP had been transferred by the appellant in favour of VAPL is factually incorrect as the appellant had not transferred its NSOP to any person and even during the period when the two Helicopters AZU and AZV were chartered out to VAPL, the appellant continued to be the operator which is evident from the fact that the crew who operated the helicopter belonged to the appellant and the appellant continued to hold the insurance of the Helicopters. 15. The submissions advanced by the learned senior counsel for the appellant deserve to be accepted as the issues raised in the appeals have been decided by the Larger Bench of the Tribunal in the order dated August 08, 2008. In fact, the reference was made to the Larger Bench in these appeals. What also needs to be noted is that the Commissioner, in the order impugned in the present appeals, has also decided all the issues in favour of the appellant, except the issue in relation to contract with VAPL for the two Helicopters A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts are conducted without remuneration, it would not classify the aircraft imported as a private aircraft. Personnel of companies which are group companies of the importers are also members of public. The aircraft is, therefore, available for use by the public. Even otherwise, this cannot be a reason to hold that the air transport service provided would fall outside the scope of non-scheduled (passenger) service; (v) The Customs Authority cannot examine the validity of the permission granted by the DGCA in absence of cancellation of the permit by the DGCA and it is the DGCA alone that can monitor the compliance of the conditions imposed; (vi) The Customs Authorities can take action on the basis of the undertaking submitted by the importer only when the DGCA holds that the conditions of the permit issued by them have been violated; and (vii) It is not mandatory for the importer to issue air tickets for providing NSOP services. 17. It also needs to be noted that the appellant had sent a letter dated August 04, 2008 to DGCA in connection with the interpretation of NSOP permit by the Customs Authority. The relevant portion of the letter is reproduced below: Dear S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04, 2008 sent by the appellant to DGCA, clarified that the activities of offering Helicopters to offshore oil and gas companies for carriage of their passengers and offering Helicopters for carriage of passengers to the State Governments/ individuals/ private and public sector companies on long/short term basis would be within the privileges of the NSOP (passenger) granted to the appellant. 20. The learned senior counsel for the appellant also submitted that the confirmation of demand in regard to the import of two Helicopters AZU and AZV for the reason that the appellant had transferred the NSOP (passenger) to a group company deserves to be set aside as such an allegation was not even raised in the show cause notice. 21. This submission deserves to be accepted for it is a fact that such an allegation was not made in the show cause notice. The show cause notice had been issued to the appellant alleging that the Helicopters were not being used for NSOP (passenger) purposes as the appellant had entered into various long-term contracts which amounted to a lease . These allegations were rebutted by the appellant by establishing that no Helicopter was hired exclusively to any one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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