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TMI Blog2024 (3) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a notional confiscation because the goods were not available at all. The case of the Revenue is the redemption fine must have been imposed in lieu of confiscation. We do not find any force in this submission of the Revenue. If the redemption fine is imposed, it cannot be extracted from the respondents because redemption fine is only an option and the respondent may not opt for it. If the respondents opts for it and pays the redemption fine then Revenue will have to return the confiscated goods which the Revenue cannot do in this case because the goods no longer exist. Valuation - The cost of the freight, transit insurance and the landing charges being ascertainable as NIL, they cannot be included in the value of the ATF. In the appellant s own case in Customs Appeal, this Tribunal by its final order [ 2018 (4) TMI 785 - CESTAT NEW DELHI] held that the cost of freight, insurance and landing charges need not be included while arising the duty on the ATF consumed in the fuel tank of the aircraft. This Tribunal has also held so in final order in the appellant s own case [ 2019 (4) TMI 2132 - CESTAT NEW DELHI] . Thus, we find no force in the appeal of the Revenue. Accordingly, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records. 4. Learned authorized representative explained the facts of the case as below. 5. The Directorate of Revenue Intelligence [DRI], Regional Unit at Jaipur received intelligence that the respondent was flying the same aircraft to various domestic destinations after completion of international run and that they were neither declaring the ATF in stock after completion of international run nor paying any customs duty leviable on the imported ATF i.e., the ATF lying in the tanks of the aircrafts at the time of completion of international flight and before the said aircrafts were reverted to run to domestic destinations. The respondents were procuring ATF overseas and also at domestic airports and the residual ATF available at the time of completion of international run was in excess of the quantities of ATF on board when the same aircraft commenced the next international run and that the aircraft retained substantial quantity of fuel on arrival, which was dutiable under Customs Act, as such fuel was imported into India. Therefore, the records and documents of the respondents were verified and the quantity of ATF that was imported and consumed was calculated and a show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance is placed on the following decisions :- (a) M/s Dadha Pharma Private Ltd. versus Secretary to Government of India [2000 (126) E.L.T. 535 (Mad.)] (b) M/s Mohan Aluminium (P) Ltd. versus Commissioner of Customs, Mumbai [2007 (210) E.L.T. 513 (Tri. Bang.)] (c) M/s Weston Components Ltd. versus Commissioner of Customs, New Delhi [2000 (115) E.L.T. 278 (S.C.)] (d) M/s Big Byte Corporation versus Commissioner of Customs, Jaipur [2006 (201) E.L.T. 70 (Tri. Del.)]. (ii) The Adjudicating authority confirmed the duty liability calculated on FOB value of the goods and did not include freight, insurance and landing charges in the value to determine the assessable value resulting in lower duty liability. Admittedly the value declared by the respondent was that of purchase of ATF overseas and so it was the FOB value only. To arrive at the assessable value freight @ 20% of FOB value, insurance @ 1.125% of the FOB value and landing charges @ 1% CIF value are required to be added in terms of section 14 of the Customs Act read with Rule 9 (2) of the Customs Valuation Rules, 1988. Therefore, the total duty confirmed should be enhanced Rs. 2,47,99,945/- and from Rs. 2,02,70,358/- confirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be there in the tank at that stage also. The net ATF, which has been imported into India and consumed in India is calculated by deducting the ATF available at the time of conversion to international run from the amount of ATF available in the aircraft when it is converted to domestic run. For instance, if the aircraft converts from international to domestic run and 30,000 lines of ATF is available in the Fuel Tank and finally when it again converts to international run, only 20,000 lines is in the aircraft, the 10,000 liters is treated as import and duty has to be paid on the quantity. On the other hand if 40,000 liters is available on conversion to international run, 10,000 liters of ATF is treated as exported. On the amount of ATF which is imported from abroad and consumed in India for domestic flights, the airline is required to pay customs duty and there is no dispute about this liability. It is also not in dispute that the respondent had maintained records as required, but had not paid customs duty on this amount of the ATF. After investigation, the respondents agreed to the duty liability and paid some amount of customs duty, which was also appropriated in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion. In the case of M/s Mohan Aluminium (P) Ltd., the decision of the Tribunal was that the goods which were not available physically were liable for confiscation under section 111 (o) and accordingly the appellants were liable for penalty under section 114A and in the case of M/s Weston Components Ltd., the goods were released on execution of a bond and bank guarantee and thereafter were confiscated. Under these circumstances, the Supreme Court held that if subsequently it is found that the import was not valid or there was any other irregularity which would entitle the customs authorities to confiscate the goods then the mere fact that the goods were released on the bond being executed would not take away the power of the customs authorities to levy redemption fine. It is to be noted that whenever seized goods are provisionally released on execution of a bond pending adjudication the conditions of the bond are that if the goods ultimately confiscated the importer would pay a redemption fine in lieu of it. In the case of M/s Big Byte Corporation was also on the same question. 16. As far as the second question of the valuation is concerned, import duty has to be paid on the cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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