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TMI Blog2024 (6) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... R.L. Logistics that the definition of Private Aircraft under Rule 3(4) of Aircraft Rules, 1937 does not warrant the view that if the tariff is not published, the use of the aircraft would be private. Further, the testing point enunciated was that if the aircraft is used for carriage of persons for remuneration, it is a public transport aircraft and not a private aircraft. In the present case, the appellant had obtained the NSOP(Passenger) permit in respect of helicopter imported but used the same for NSOP (Charter), however, there is no bar on the permit holder of NSOP (Passenger)services to provide charter services, which has been squarely upheld by the Larger Bench on the basis of CAR, 1999 and 2000. The crux of the decision is that NSOP (Passenger) services being a much wider category includes charter operations. In fact, subsequently, the difference between the NSOP(Charter) and NSOP(Passenger) services have been done away with by amalgamating the two services under CAR 2010 and as a result, both NSOP(Charter) and NSOP (Passenger) fall under one single category of non-scheduled transport services - the helicopter was used only for commercial flights for remuneration except the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mean 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 aviation requirement under the provision of Rule 133A of the Aircraft Rules, 1937: 3. Show cause notice dated 18.09.2009 was issued proposing to demand differential duty under Section 28 of the Customs Act, 1962 on the ground that the appellant has violated Condition No.104 of the Notification No.21/2002-Cus.,as amended, as the Helicopter has been used for NSOP (Charter) whereas Undertaking has been submitted for NSOP (Passenger) and a Permit issued for passenger service is not automatically valid for charter services. Secondly, the appellant has not been issuing any tickets for the passengers. Penalties were also proposed on the appellant as well as on individuals. 4. On adjudication, the impugned order confirmed the differential duty in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services, categorically provides that a non-scheduled operator can conduct charter operations. 68. It is, therefore, clear that an operator providing non-scheduled (passenger) services can always provide such services either on individual seat basis or by chartering the entire aircraft and such a restriction is not contained either in Condition No. 104 or Aircraft Rules or the Civil Aviation Requirements. 69. It also needs to be remembered that charter is one way in which passenger services can be rendered; the only difference is that instead of individual seats, all the seats of an aircraft are hired out to one person. It is, therefore, difficult to conceive that by chartering the aircraft, non-scheduled (passenger) services would not be rendered as even in such a case an operator transport passengers. 70. This apart, a perusal of the definition of non-scheduled (passenger) services contained in the Explanation to Condition 104 would show that it includes within its scope all air transport services other than scheduled (passenger) air transport services. Therefore, all services which are not scheduled services are permitted non-scheduled (passenger) services. Thus, also non-sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not issued to the passenger, it may only lead to non fulfilment of the liability. The consequence is itself mentioned in Rule 3(2) to the Second Schedule. Thus, there cannot be any violation of the conditions, if tickets are not issued. 8. We find that the aircraft imported is not a private aircraft. In this regard, the observations made by the Larger Bench in M/s.V.R.L. Logistics that the definition of Private Aircraft under Rule 3(4) of Aircraft Rules, 1937 does not warrant the view that if the tariff is not published, the use of the aircraft would be private. Further, the testing point enunciated was that if the aircraft is used for carriage of persons for remuneration, it is a public transport aircraft and not a private aircraft. 9. In the present case, the appellant had obtained the NSOP(Passenger) permit in respect of helicopter imported but used the same for NSOP (Charter), however, there is no bar on the permit holder of NSOP (Passenger)services to provide charter services, which has been squarely upheld by the Larger Bench on the basis of CAR, 1999 and 2000. The crux of the decision is that NSOP (Passenger) services being a much wider category includes charter operations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clarifies that the service may be for any kind of remuneration. However, for a service to fall within the meaning of air transport service as defined in Rule 3(9) of the Aircraft Rules, it is essential that the same is provided for some kind of remuneration. Clearly, flight service for no remuneration at all would not qualify to be considered as air transport service within the meaning of sub-rule (9) of Rule 3 of the Aircraft Rules. 32. In the facts of the present case, the appellant has used the aircraft for its own use without any remuneration whatsoever, either from the passengers transported by it or from any other person. In the circumstances, it would be difficult to accept that the appellant has used the aircraft for providing air transport service within the meaning of Rule 3(9) of the Aircraft Rules. Thus, the determinative factor noticed by the High Court in the case of M/s. East India Hotels Ltd. was evidently the factor of remuneration and in view thereof concluded that the conditions of exemption notification were not complied with as the appellant therein had not used the aircraft for rendering any Air Transport Service within the meaning of Rule 3(9) of the Aircra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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