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TMI Blog2023 (3) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... right in holding that the Customs Authority cannot examine whether the appellants have fulfilled the condition of exemption notification? - HELD THAT:- The same is covered in favour of the Revenue and against the assessee by a recent decision of this Court in EAST INDIA HOTELS LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND CENTRAL GST, NEW DELHI [ 2023 (2) TMI 47 - DELHI HIGH COURT] . The question whether an undertaking, as furnished in terms of Condition 104 of the Notification in question is complied with or not is required to be considered by the Custom Authorities. The Custom Authorities are not bound by the decision of the DGCA. Whether the respondent had complied with Condition 104 of the Notification and had used th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority (Commissioner of Customs) had raised a demand of ₹6,22,67,295/- (Rupees six crores twenty two lacs sixty seven thousand two hundred and ninety five) and further imposed a penalty of ₹3,00,00,000/- (Rupees three crores) under Section 112 of the Customs Act, 1962 (hereafter the Customs Act ). In addition, the Commissioner also directed confiscation of the aircraft imported by the respondent (hereafter the aircraft ) under Section 111(o) of the Customs Act with an option to redeem the same by payment of a redemption fine of ₹6,50,00,000/- (Rupees six crores fifty lacs only) under Section 125 of the Customs Act. The allegation against the respondent was that it had not complied with the undertaking furnished in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These two conditions are satisfied by the importers, inasmuch as: - a. The contention of the department that the appellants have rendered air transport service to their group companies by carrying personnel of their group companies is not of any relevance as there is no prohibition in the said definition against any kind of persons to be transported; b. There is no stipulation or restriction or a condition in the definition that a tariff should be published or that such service should be rendered only on per-seat basis and not by chartering or about the category or class of persons to be transported; (ii) There is no requirement of having a published tariff and Condition 104 (c) to the exemption notification cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. It is clear that the Aircraft BRT has been strictly used in terms of the permit granted by the DGCA and the said Aircraft was used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an undertaking, as furnished in terms of Condition 104 of the Notification in question is complied with or not is required to be considered by the Custom Authorities. The Custom Authorities are not bound by the decision of the DGCA. 6. The other questions relate to whether the respondent had complied with Condition 104 of the Notification and had used the aircraft for providing non-scheduled (passenger) services. The said question is also covered by the decision in East India Hotels Ltd. v. Commissioner of Customs, Central Excise and Central GST, New Delhi (supra). It is not disputed that the respondent has provided the said services for remuneration. 7. In the aforesaid view, notwithstanding that the respondent has not publishe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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