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TMI Blog2019 (4) TMI 2132X X X X Extracts X X X X X X X X Extracts X X X X ..... tes various international and domestic flights from IGI Airport, Delhi to foreign destinations and within the country. For the purpose of flights, the appellants uplifts Air Turbine Fuel (ATF) in bond as well as on payment of applicable duty on the international flight since the ATF carried by the foreign going aircraft is not enough for return journey, the aircraft purchases ATF at a foreign station for return journey. As per the provisions of notification no. 151/94 Cus dated 13.7.1994, the duty paid on ATF taken by the aircraft while commencing the journey for foreign destination is deducted from remnant fuel after the aircraft finishes its international run and the balance quantity of ATF remaining in the aircraft for the purpose of dom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y +22,30,671/- penalty 3 C.No.VIII(AP)10/ P&I/ ShiftC/ Misc/2015 dated 18.6.2018 321/Commr/Adj/2018 dated 31.08.2018 23,68,378/-duty +23,68,378/- penalty 3. The appellants are before us against the above mentioned three appeals against these Order-in-Originals. 4. The learned advocate appearing for the appellants have contended that the adjudicating authority has failed to appreciate that the residual fuel remaining in the aircraft does not involve any refuelling activity and, therefore, there is no loading cost and since it remains in the aircraft, it cannot also be attributable to any loading expenditure that has been incurred by the appellant. 5. The learned advocate has also vehemently contended that adjudicating authority has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability on such ATF is not under dispute. However, its valuation, more specifically, addition of freight element on notional basis to arrive at the value of such ATF is in dispute. The Original Authority held that the remnant ATF is transported by the aircraft and as such, as the actual freight is not ascertainable, a notional freight in terms of Rule 10(2) is to be added to arrive at the assessable value of ATF. We note that the aircraft requires ATF for its propulsion. As per the Civil Aviation Regulating 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, certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved and hence, there is no application for Rule 10 (2). 8. The Hon'ble Supreme Court in Wipro Ltd. (2015) 14 SCC 161, held that normally, the value of imported goods has to be the transactional value which means the price "actually paid" or "payable" for the goods imported. When the value of transaction could not be determined then the Rules are applied to arrive at the value. The endevour is to have closest proximity with the actual price. Dealing with addition of loading and handling charges at 1% on notional basis as per Rule 9 of Valuation Rules, the Apex Court held that when the actual cost towards handling charges are available, notional addition is not legally tenable. It was held to be violative of Article 14 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under which sub-category of the provisions of Section 112, the appellant is held liable for penalty. There are different types of infringements listed under the section. We note that the Original 8 Authority concluded that by not following the proper procedure and not calculating the customs duty properly, the appellant evaded customs duty. We find such observation is not legally sustainable in the facts of the case, as discussed above. The procedure followed by the appellant and regularly intimated to the Department has not been varied by the Revenue. No loss of revenue has been alleged except for non-addition of notional fright in the value of ATF. As we have held above, such notional additional is not legally sustainable. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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