9911796707
TMI Blog2024 (7) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... t Schedule to the Customs Tariff Act, 1975 and have availed exemption from Basic Customs Duty (BCD) under Serial No. 347B of the Notification No.21/2002-Customs dated 01.03.2002 as amended; exemption from Additional Duty of Customs (CVD) vide Sl. No. 54E of Notification No. 06/2006-C.E. dated 01.03.2002 as amended and exemption from Special Additional Duty of Customs (SAD) under Sl. No.1 of Notification No. 20/2006-Customs dated 01.03.2006. In support of their claim for availing exemption from import duties, the appellants had produced a 'No Objection Certificate' (NOC) issued by the Director General of Civil Aviation dated 15.10.2007 with DGCA Permit No.01/2003 dated 02.09.2003 where under the appellants importer was authorized to import the said helicopter for the purpose of operating and providing for Non-Scheduled Air Transport Services (Passenger). The appellants importer also submitted an undertaking in accordance with the condition of exemption under Sl. No. 104 of Notification No.21/2002-Customs dated 01.03.2002 read with Notification No. 61/2007-Customs dated 03.05.2007, whereby they had undertaken that the said helicopter would be used for providing nonscheduled (pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issues covered in the present appeal is no more under dispute as these have been addressed by the Larger Bench of the Tribunal in the case of VRL Logistics Limited Vs. Commissioner of Customs, Ahmedabad - (2023) 3 Centax 168 (Tri.-LB), wherein the appellants have also represented as one of the intervenor. Miscellaneous application No.85078 of 2022 filed to this effect was allowed by the Larger Bench of the Tribunal in its Miscellaneous order dated 28.01.2022. He submitted that the Larger Bench had answered the issues in dispute in favour of the appellants/importer and held that the customs duty exemption will continue to be available to aircraft/helicopter imported by a Non- Scheduled Operator-Passenger (NSOP) permit holder for passenger services even when the same is used for providing charter services. Further, he stated that on the above basis, the respective Division Benches of the Tribunal have also decided the appeals in favour of the importers. 3.3 Without prejudice to the above, learned Advocate submitted that the entire demand of customs duty is barred by limitation, as the SCN was issued for demand of duty only in terms of Section 28(1) of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions that the imported helicopter is used only for NSOP purpose. Further, he stated that there was no published tariff available and no tickets were issued, by the appellants; the hirer companies were operating the helicopter by providing charter services to other parties and associated companies and the appellants had no control over the services. Hence he claimed that the appellants importer had not fulfilled the customs duty exemption conditions as provided in the explanation in Sl. No.104, relevant to the entry at Sl. No. 347B of Notification No.21/2002-Customs dated 01.03.2022 and therefore the impugned order has rightly confirmed the duties and confiscated the goods besides imposition of penalty on the appellants. 4.2 Learned Special Counsel further submitted that the undertaking given by the appellants in respect of imported goods was valid at the time of importation and for availment of exemption notification, which was cancelled only after the appellant submitted the end user certificate as required under the law. However, on detailed investigation the said end use certificate was found unacceptable being fraudulently and wrongly submitted and the demand under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and on its Managing Director under Section 112 of the Customs Act, 1962 on the basis of following findings in the impugned order. The relevant paragraphs of the impugned order are extracted below: "21. It is an accepted fact that the helicopter imported by UHPL is completely placed at the disposal of HCPL on charter-hire basis. There is no published tariff (refer Explanation under 104 of Notification 21/2002-Cus). The helicopter is not available for use by any other party. They are not issuing tickets (refer para 10.7 of CAR, Series C Part V). 22. Against the above facts, it is to be decided whether UHPL is operating non-scheduled (passenger) services as envisaged in condition No.104 of Notification 21/2002-Cus.... 23. Indian Air Craft Rules, 1937 does not define 'Non-scheduled (passenger) services'. This expression is defined in the Civil Aviation Requirements for 'Non-scheduled (passenger) services. As per this definition, Non-scheduled (passenger) services means air transport services other than "scheduled passenger air transport services" as defined in Rule 3 of the Air Craft Rules, 1937. If this definition is interpreted to mean that any services which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21/2002-Cus. xxx xxx xxx xxx 30. Since there is contravention of the conditions of the exemption notification No. 21/2002-Cus the helicopter is liable to confiscation under section 111(o) of the Customs Act also. 31. Since the helicopter is liable to confiscation under section 111(d) and section 111(o) of the Customs Act, UHPL and is managing director are liable to penalty under section 112 of the Customs Act. However, since this is a matter of interpretation of the notification and there was lack of understanding among many as seen from the number of such cases that have been booked all over India, I consider that a nominal penalty is enough. 32. I do not find any willful mis-declaration or suppression on the part of UHPL or its Managing Director and I hold that there is no case for imposing penalty under section 114A of the Customs Act. 33. In view of the above facts and circumstances, I pass the following order: ORDER i) I confirm the demand for duty amounting to Rs. Rs.8,63,53,254/- (Rupees Eight Crore Sixty Eight Lakhs Fifty Three Thousand Two Hundred Fifty Four only), along with appropriate interest in terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.61/2007-Customs dated 03.05.2007, for consideration of the subject issues under dispute. Customs Act, 1962 "Section 2. Definitions- In this Act, unless the context otherwise requires, (1A) "aircraft" has the same meaning as in the Aircraft Act, 1934 (22 of 1934);" The Aircraft Act, 1934 "2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (1) "aircraft" means any machine which can derive support in the atmosphere from reactions of the air, a[other than reactions of the air against the earth's surface and includes balloons, whether fixed or free, airships, kites, gliders and flying machines; (2C) "Directorate General of Civil Aviation" means the Directorate General of Civil Aviation constituted under section 4A; 4A. (1) The Central Government may constitute a body to be known as the Directorate General of Civil Aviation, which shall be headed by an officer designated as the Director General of Civil Aviation to be appointed in this behalf by the Central Government by notification in the Official Gazette. (2) The Directorate General of Civil Aviation shall be responsible for carrying out the safet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government may be exercised or discharged by the Central Government or by any person authorised by it in that behalf; (2) Any power or duty conferred or imposed by these rules on the Director-General may be exercised or discharged by the Director-General or by any other person authorised by the Central Government in that behalf;" Notification No. 21/2002-Customs dated 01.03.2002 "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 17/2001-Customs, dated the 1st March, 2001, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 118(E) of the same date, namely :- In the said notification,- (A) in the Table,- (i) against S. No. 187, for the entry in column (4), the entry "Nil" shall be substituted; (ii) after S. No. 347 and the entries relating thereto, the following S. Nos. and entries shall be inserted, namely :- 347A. 8802 (except 8802 60 00) All goods Nil - 103 347B. 8802 (except 8802 60 00) All goods Nil - 104 347C. Any Chapter Parts (other than rubber tyres or tubes) of aircraft of heading 8802 Nil - 105 (B) in the Annexure, after condition No. 102 and the entries relating thereto, the following conditions shall be inserted, namely :- Condition No. Conditions 104. (i) the aircraft are imported by an operator who has been granted approval by the competent authority in the Ministry of Civil Aviation to import aircraft for providing non-scheduled (passenger) services or non-scheduled (charter) services; and (ii) the importer furnishes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be provided by the appellants as follows: "3.0 SERVICES TO BE PROVIDED 3.1 The CONTRACTOR (M/s United Helicharters Pvt. Limited) shall provide Helicopter services during daylight hours from Visakhapatnam Airport or from any such mutually agreed yeah report within to the offshore and return as required by the COMPANY, inter alia for the purpose of mobilizing and demobilizing of personnel and movement of freight and/or equipment of the COMPANY (M/s Heligo Chaters Pvt. Limited) and its clients. 3.2 The Helicopter type shall be Bell 412EP. The Bell 412 type helicopters shall consist of a Twin Engine with the capacity for thirteen (13) passenger + (2) pilots (subject to temperature & distance) and shall be provided for daylight and the option of the COMPANY and night flights for emergencies. 3.5 It is agreed by the COMPANY that the helicopter utilization of a minimum of 40 (Forty) Hours per month (during daylight hours) will be available by the COMPANY as long as to whether operation is on. 3.6 If in a particular month the utilization, is less than 40 Hrs. even with the two-vessel operation, and the underutilization is not due to non-availability, of the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms dated 03.05.2007, it is provided that import of goods falling under chapter heading 8802 (except 8802 60 00) are exempt from basic customs duty subject to fulfillment of the condition No. 104. Helicopters being classifiable under Customs Tariff Item 8802 1100, 8802 1200 are covered under the above exemption entry and hence the goods under dispute in this case are eligible for exemption by the main entry under Serial No. 347B of the notification dated 03.05.2007. In respect of the condition No. 104, it is seen that there are basically three conditions viz., (i) import of helicopter is by an operator who has been granted approval by the competent authority in the Ministry of Civil Aviation i.e., DGCA for providing Non-Scheduled (Passenger) Service or Non-Scheduled (Charter) Service; (ii) importer furnishes an undertaking to the AC/DC of Customs for providing Non-Scheduled (Passenger) Service or Non-Scheduled (Charter) Service, as the case may be; and (iii) in the event of the importer's failure to use the imported aircraft for the specified purpose, then they shall pay an amount equal to the duty payable on the said aircraft, but for the said exemption provided under this notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in rule 3 of the Aircraft Rules 1937. Explanation (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 aviation requirement under the provision of rule 133A of the Aircraft Rules 1937." Definition under Aircraft Rules, 1937 "Rule 3(38) "Operator" means a person, organisation or enterprise engaged in or offering to engage in aircraft operation; Rule 3(49) "Scheduled air transport service" means an air transport service undertaken between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a re-cognisably systematic series, each flight being open to use by members of the public;" "CIVIL AVIATION REQUIREMENTS (CAR) issued under Sub-rule (2) of Rule 134A of the Aircraft Rules, 1937 specifies that no air transport service, other than a scheduled air transport service, shall be operated by an Indian air transport undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd CAR 2000 deals with non-scheduled (charter) services operator; predominantly both contain identical provisions with the exception that CAR 2000 contain some relaxed provisions meant for smaller aircraft. DGCA as amalgamated both these CAR and have issued CAR 2010 by incorporating various clarification issued by it, in the form of revised code. It is therefore to be understood that CAR 2010 can be taken as a basis to comprehend the CAR 1999 and CAR 2000. In terms of the definition of nonscheduled air transport service under CAR, this is other than the scheduled air transport service. Thus, we are of the considered view that this definition provides a meaning that the requirement of publishing a timetable; providing a pattern of regular frequency of flight services in a systematic manner; and the such services being kept open for public, is not required to be followed for non-scheduled air transport service. In view of such a definition provided under CAR/Aircraft Rules, 1937, we come to the conclusion that the findings arrived at in the impugned order for denying the exemption benefit under Serial No. 347B of the notification dated 03.05.2007, only on the basis of explanation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find support in the policy pronouncement made in the Parliament by the Union Minister for Finance in the Union Budget for the financial year 2007-2008 which is extracted below: "140. Import of aircraft, including helicopters, by Government and scheduled airlines is, at present, exempt from all duties, and that position will continue. However, there is no reason to allow the exemption to other private importers. Hence, I propose to levy an import duty of 3 per cent, which is the WTO bound rate, on all private import of aircraft including helicopters. Such import will also attract countervailing duty and additional customs duty." The above aspect of import duty introduced only with respect to private import of aircraft has also been clarified in the instructions issued by the Tax Research Unit of the Ministry of Finance in implementation of the budget changes for the year 2007-2008, as follows: "86.1 Exemption from Customs duty has been withdrawn on Aircraft, and parts thereof imported for private use or by non-scheduled operators (S.No.346 & S.No.347 of notification No.21/2002-Customs as amended by notification No. 20/2007-customs refers). However, exemption is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the following cases. In the case of Reliance Commercial Dealers Ltd., Sudhir Nayak (supra), the Tribunal relying on the Larger Bench decision in the case of VRL Logistics (supra) has held that notwithstanding that the published tariff has not been issued, the condition No.104 of customs duty exemption has been complied with by the importer appellant. The relevant paragraphs of the said order are extracted below: "17. Aircrafts and helicopters are classified under Customs Tariff Heading 88 of the First Schedule to the Customs Tariff Act, 1975. The tariff rate of duty till 28-2-2007 on the import of aircraft was 3%/12.5%. Subsequently, pursuant to the proposal made in the Finance Bill, 2007, exemption notification no. 20/2007 dated 1-3-2007 was issued inserting Entry 346B and Condition No. 101 in the earlier exemption notification dated 1-3-2002, whereby, the effective rate of duty on import of aircraft for scheduled air transport service was made 'nil'. No exemption was, however, granted to non-scheduled air transport service and private category aircraft. However, with the issuance of the exemption notification dated 3-5-2007, the effective rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services' as defined in rule 3 of the Aircraft Rules, 19378. 22. "Air transport services" is defined in rule 3(9) of the Aircraft Rules as under: "Air transport service" means a service for the transport by air of persons, mails or any other thing, animate or inanimate, for any kind of remuneration whatsoever, whether such service consists of a single flight or series of flights." 23. "Scheduled air transport service" is defined in rule 3(49) of the Aircraft Rules as under: "Scheduled air transport service" means an air transport service undertaken between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognizably systematic series, each flight being open to use by members of the public." 24. The term 'scheduled (passenger) air transport services' has to be interpreted according to this definition, and applied to passenger travel in contradistinction to carriage of goods or mail. 25. Thus, if a service is covered by 'air transport service' defined in rule 3(9) of the Aircraft Rules and is other than 'scheduled (passenger) air transport service' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be transported. Thus, 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. 56. Rule 3 (49) of the Aircraft Rules defines 'scheduled air transport service' to mean an air transport service undertaken between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognizably systematic series, each flight being open to use by members of the public. Thus, for an 'air transport service' to qualify as 'scheduled air transport service', it must satisfy all the following three conditions: (i) It must be undertaken between the same two or more places; (ii) It must be operated according to a published time table or the flights must constitute a recognizable systematic series; and (iii) Each flight must be open to use by members of the public. 57. If any of the aforesaid three conditions is not satisfied in respect of a passenger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 issued by DGCA for grant of permits to operate non-scheduled air transport (passenger) services. In fact paragraph 9.2 of CAR 1999, which deals with non-scheduled air transport (passenger) services, categorically provides that a non-scheduled operator can conduct charter operations. ** ** ** 65. What needs to be noticed is that the exemption notification does not prohibit a non-scheduled (passenger) service permit holder to use the aircraft for charter operations. A conjoint reading of the definitions contained in the Aircraft Rules, as have been adopted in the definition in clause (b) of the Explanation to Condition No. 104 of the exemption notification, makes the following position quite clear: (a) The expression "air transport service" covers service for the transport by air of person for any kind of remuneration whatsoever. The service may be individually for each seat or by chartering the entire aircraft and the remuneration may be of any kind whatsoever, such as seat-wise or daily or weekly or monthly or annual basis. There is no restriction on the mode and manner of fixing or charging the remuneration either in the exemption notification or in the Air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of public 86. The definition of "private aircraft" under rule 3(43) of Aircraft Rules, does not warrant the view that if tariff is not published, the use of aircraft would be private. In terms of rule 3(43), private aircraft is other than public transport aircraft. Public transport aircraft is defined in rule 3(46) as aircraft which effects public transport and public transport is defined in rule 3(45) to mean all carriage of persons or things effected by aircraft for a remuneration of any nature whatsoever, and all carriage of persons or things effected by aircraft without such remuneration if the carriage is effected by an air transport undertaking. Air transport undertaking is defined in rule 3(9A) to mean an undertaking whose business includes the carriage by air of passengers or cargo for hire or reward. It would follow from the aforesaid definitions that where the aircraft is used for carriage of persons for a remuneration it is a public transport aircraft and not a private aircraft. There is no stipulation in the said definitions that if tariff is not published, the use of aircraft would be as a private aircraft. Admittedly, in the present case, the appellants have us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Learned special counsel for the department has, however, placed reliance upon paragraph 9.7 of CAR 1999 to contend that non-issue of passenger tickets would amount to not rendering non-scheduled (passenger) service. 102. This contention cannot not be accepted. Paragraph 9.7 of CAR 1999 provides that non-scheduled operators shall issue passenger tickets in accordance with the provisions of the Carriage By Air Act, 1972 and any other requirements which may be prescribed by DGCA. As noticed above, the Policy Guidelines for starting scheduled/non-scheduled air transport services issued by Ministry of Civil Aviation provide that non-scheduled operator is not permitted to publish time schedule and issue tickets to passengers. There is, therefore, no obligation on the part of the appellants to issue tickets to passengers. ** ** **" (Emphasis Supplied) 34. It is also not possible to accept the contention of the Department that Larger Bench did not examine the issue of demand of duty in terms of the undertaking. This issue was examined at length by the Larger Bench and the findings are as follows: Whether the customs authorities have the jurisdiction to decide vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only that statutory authority which is empowered to monitor compliance of the conditions of the certificate and to initiate action, in case of non-compliance. In this connection learned counsel have placed reliance upon the decisions of the Supreme Court in Zuari Industries Ltd. v. Commissioner of C. Ex. & Customs 2007 (210) E.L.T. 648 (S.C.), Titan Medical Systems Pvt. Ltd. v. Collector of Customs, New Delhi 2003 (151) E.L.T. 254 (S.C.) and Vadilal Chemicals Ltd. v. State of Andhra Pradesh 2005 (192) E.L.T. 33 (S.C.). ** ** ** 99. It, therefore, follows that it is the jurisdictional authorities under the Civil Aviation Ministry that alone can monitor the compliance of the conditions imposed and the Customs Authorities can take action on the basis of the undertaking submitted by the importer only when the authority under the Civil Aviation Ministry holds that the conditions have been violated. (Emphasis Supplied) 35. It is seen that the Larger Bench held that the undertaking to use the aircraft for non-scheduled (passenger) service can be said to have been violated only when the DGCA finds that the use of the aircraft is not in accordance with the permit grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Delhi that the importer has fulfilled the condition No.104 of customs duty exemption notification, inasmuch as the aircraft has been used for remuneration. The relevant paragraphs of the above judgement are extracted and given below: "6. The other questions relate to whether the respondent had complied with the Condition No.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). 7. It is not disputed that the respondent has provided the said services for remuneration. In the aforesaid view, notwithstanding that the respondent has not published its tariff for providing the said services, it has nonetheless complied with the conditions of providing non-scheduled (passenger) services as defined in the Explanation to the Condition No.104 of the Notification in question. 8. In view of the above, the question no.(i), as projected by the Revenue, is decided in its favour and the impugned order to the said extent is set aside. Insofar as the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation of non-scheduled air transport services. It has restated and codified the position stated earlier by the DGCA through various clarifications and is explanatory in nature; and (viii) The division bench in King Rotors was not correct in holding that the decision of the Tribunal in Sameer Gehlot was rendered per incuriam. 125. The appeals may now be listed before the regular division bench for hearing." Hence, we do not find merits in the argument advanced by the Special Counsel decision of the Larger Bench has no relevant to this case. 10.4 Further, we also find that the charter hiring of the helicopter by the companies for their exclusive use, does not impact or change the role of appellants as non-scheduled (passenger) service operator who have been given specific permit by the DGCA to operate the specific imported helicopter and that the appellants alone are required to fulfil the basic conditions as an importer in availing the duty exemption in terms of notification No. 61/2007-Customs dated 03.05.2007. We have also independently examined the issues in dispute and in specific the fulfilment of exemption conditions by the appellants in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewise, the requirement of licence for import of aircraft is embodied in Note 1 and Note 2 of Chapter 88 of ITC (HS) 2004-09 but is dispensed with for those effected by - '(h) any person who has been granted permission by the Ministry of Civil Aviation, Government of India for operating scheduled or non-scheduled air transport services (including air taxi services) for import of aircraft or helicopters, subject to the condition that the import of the aircraft helicopter and their use is in accordance with that permission.' 9. While a person, organisation or enterprise engaged in or offering to engage in aircraft operation could be a scheduled or non-scheduled service for passengers, it is the latter, along with companies or firms that are permitted to carry out charter operators, who are eligible for the exemptions and continue to be while in that capacity. The status, and eligibility thereof, is contingent upon approval under Rule 134A of Aircraft Rules, 1937, for passenger services, and, for charterers, the existence of published tariff besides registration and approval by the Director General of Civil Aviation, and conformity with Civil Aviation Requirement issued under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed contraption, poses hazards to free mobility, as well as life and limb, of humans and animals besides damage to property. This compulsion to 'rein in' such mechanical or electrical equipment that, necessarily, share vector space is translated as regulation. Thus we had the Hackney Carriage Act, 1879 (since repealed in 2017) and have the Motor Vehicles Act, 1988 which, along with erstwhile laws commencing with that of 1914, were intended for regulating road transportation and the Merchant Shipping Act, 1958, and its predecessor statute, governing movement of craft at sea while the Aircraft Act, 1934 does so for the airspace over the country. These statutes, definitive, exclusive, purposive and comprehensive, as they are, bear the legislative sanction for strict, and undeviating, enforcement in proportion to the unfavourable consequence of non-regulation. Policies are, therefore, tuned to be in accord with such regulation. In the context of such mirroring of policy, any statutory instruments must, in the absence of an inherent explanation, be calibrated with the statutes governing the sector. As far as air services are concerned, there is a detailed exposition on the genesis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '(1B) "Aerial work aircraft" means an aircraft used for the aerial work;' '(1A) "Aerial work" means any aircraft operation undertaken for an industrial or commercial purpose or any other remunerative purpose, but does not include operation of an air transport service;' '(46) "Public transport aircraft" means aircraft which effects public transport;' and '(45) "Public transport" means all carriage of persons or things effected by aircraft for remuneration of any nature whatsoever, and all carriage of persons or things effected by aircraft without such enumeration if the carriage is effected by an air transport undertaking;' in Rule 3 of Aircraft Rules, 1937, the statutory categorisation of aircraft is restricted to private aircraft, public transport aircraft and aerial aircraft each having its clearly demarcated role in carriage of persons and goods or undertaking of assignment with remunerative work as the distinguishing feature of the latter two. As there is no allegation of carriage of persons in the impugned aircraft without remuneration, there can be no cavil on the finding of the original authority that these are not 'private aircraft' notwithstanding the plea in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transport service' with 'charter service', of any description, not acknowledged therein. The evolution of policy prescriptions on operations are articulated in Civil Aviation Requirements (designated as CAR distinguished by Roman numerals serially appended) and amplifications enunciated in Carriage by Air Act, 1972. Charter operations were accorded separate recognition initially in the Civil Aviation Requirements Section 3 [of] Air Transport Series 'C' Part V of 17th May, 2000 but was merged with Part III by Issue II of 1st June, 2010. Consequently, the cargo and passenger services were bisected into 'scheduled' and 'non-scheduled' admitting of no further subdivisions. The dispute, therefore, that requires resolution is thus confined to the alleged disqualification arising from charter operations prior to the merger of Civil Aviation Requirements. 17. We are not convinced that a challenge grounded on the claim of parallel and coordinate empowerment of the tax collector to decide on nature of air transport operations can find acceptance. From the qualifications prescribed for eligibility, at the threshold and even for continuance thereafter, it would appear that Aircraft Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sused for offering public access. With the dismantling of statutory air corporations and migration to 'open sky policy', 'non-scheduled passenger service', till then operated as restricted charter without the dignifying recognition of such nomenclature, was transformed as the alternative within the statute for eschewal of the outward manifestation that distinguished 'charter operation'. Ticketing was, thus, more of a mimicking of 'scheduled air transport service' than a statutory qualification of the new permits. In accordance with Rule 133A of Aircraft Rules, 1937, regulation of 'non-scheduled passenger service' was put into place through Civil Aviation Requirements. Thus, the introduction of a class of 'nonscheduled service' in commercial aviation did not, except for the christening, materially alter the existing distinction between 'scheduled air transport service' and 'charter operations'; the offering rendered by 'nonscheduled passenger service' operator was, essentially, that of charter to passengers as individuals instead of groups. The separate recognition, albeit for a time, accorded to 'charter service' operators was not intended to fill any unoccupied space between that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aturally, on committing of an offence. 29. That a number of similar imports had been subject to the test of being legal and proper before the Tribunal is apparent from the numerous decisions cited by Learned Authorised Representative and Learned Counsel for the respondent. In the latest in the series, viz., Reliance Transport and Travels Ltd. v. Commissioner of Customs, New Delhi [2018-TIOL-3620-CESTAT-DEL = 2019 (369) E.L.T. 1367 (Tri. - Del.)], the submission of Learned Authorised Representative therein that '12......... only the persons of RADAGPL or their nominees have used and/or travelled in the said aircraft. Further, issue of ticket is a pre-condition for operating as NSOP. The appellants have misuse (sic) the exemption notification as the appellant company is the subsidiary of RADAGPL and M/s. Swan Sorority Finance (P) Limited, which are companies under the management of 'Reliance Anil Dhirubhai Ambani Group'. It is further stated that the tariff for operating as NSOP is not published and as such the duty is demanded for violation of post-import condition No (ii) (a) of the said Notification No. 21/2002-Cus. as amended. Ld AR further states that similar issue arose i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the earlier decision as bad law. Apparently, the referral Bench did not think so and appeared to have been conflicted by the apparent contrariness of the two. Therefore, to our mind, the decision in re King Rotors & Air Charter P. Ltd. lacks the pre-eminence canvassed by Learned Authorised Representative. Indeed, while deciding upon the application for waiver of pre-deposit in Punj Lloyd Aviation Ltd. v. Commissioner of Customs (Preventive), New Delhi [2014 (302) E.L.T. 553 (Tri. - Del.)], the Tribunal noted that - '3. On this very issue there is a conflict of precedents. A Division Bench of the Tribunal in C.C., New Delhi v. Sameer Gehlot - 2011 (263) E.L.T. 129 (Tri. - Del.) in substantially similar factual circumstances ruled that the exemption Notification incorporates only pre-import conditions and no separate post-import condition is enumerated; the post-import conditions requiring and approval from DGCA and undertaking to be furnished at the time of importation have already been fulfilled and the exemption was granted at the time of import; in the circumstances, the importers cannot be charged with violation of pre-import conditions on the basis of circumstances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riam. In our considered view where the Court applies its mind to a particular statute or instrument, its conclusion even if erroneous cannot be characterised as per incuriam. 'Incuria' literally means 'carelessness' in practice, per incuriam means per ignorantium. Accordingly, the quotable in law is avoided and ignored if it is rendered in ignorantium of a statute or a binding authority-vide State of U.P. v. Synthetics and Chemicals Ltd. - (1991) 4 SCC 139. In Sameer Gehlot, this Tribunal had clearly noticed provisions of exemption Notification No. 21/2002-Cus., dated 1-3-2002 but has also reproduced condition No. (4) thereof. The judgment also noticed provisions of the D.G.F.T. Notification No. 2 (RE-2006)/2004-2009, dated 7-4-2006 and thereafter the scope of the exemption Notification. In the circumstances, the interpretation of the exemption Notification in Sameer Gehlot could not be characterised per incuriam. For the nonce, suffice it to observe, prima facie, on established principles of per incuriam, that the decision in Sameer Gehlot was not per incuriam.' 30. As observed therein, notwithstanding the premise on which the later decision of the Tribunal in re King Rotors & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teness inherent in, and insensitivity displayed by, suggesting that the principle of binding precedent would permit us no course of action other than to follow this one out of the many decisions of Coordinate Benches that differed from all others, and that too from not having been made aware of the existence of previous decisions on similar disputes, and, thereby, insinuating a 'hostage corollary' to disturb the rule, the facts, and issues, in re King Rotors & Air Charter P. Ltd., noted thus : '24.3 In any case, the appellants have not produced any clarification of DGCA to the contra. They claim to have requested the said authority by letter dated 17-2-2009 for a clarification on the point, but they are yet to obtain any clarification issued by DGCA to third parties on the particular facts of their cases cannot be pressed into service in the appellants' case. We have also seen assertive averments in the assessee's appeal to the effect that the Customs authorities themselves received DGCA's clarification in the appellant's favour on the scope of the subject permit. But these assertions are yet to be substantiated. They remain ipse dixit. Nobody has stood in the way of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gers. They only allowed Heligo to hire the aircraft for a remuneration and use it for transporting employees of Oil & Gas/allied companies between Visakhapatnam airport and offshore oil/gas fields under contracts awarded to Heligo by those companies. The appellants were unable to use the copter (during the tenure of the agreement) for any other purpose without the prior consent of Heligo. They did not have any control over the manner in which the helicopter was used by Heligo (who professedly entered into charter contracts with "third party companies" in respect of the aircraft which was accordingly used for transporting the personnel of these companies) and the copter operations were not open to members of the public. Where the helicopter would not come within the meaning of "passenger aircraft", the flight operations cannot be called "non-scheduled (passenger) services".' are substantially different with consequences to compliance. 33. The distinction between 'scheduled' and 'non-scheduled' posited in - '24.7 ... Any such dissection of the definition of "scheduled air transport service " as attempted by the counsel is not warranted to obtain the meaning of "non-scheduled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyees of connected undertakings or any other person as travelling public; there is no allegation of free passage to anyone or that the respondent herein was made to bear the cost of such travel. That alone would be amenable to the conclusion of the aircraft having been imported for own use. Both scheduled and non-scheduled air transport services are clearly not intended for own use but to contend that the aircraft have been so used merely owing to evaluation of usage through the prism of revenue maximising would have consequences for all airlines and other air services operating in the country. It is the conditions of the exemption notification, and not a purported intent, that should be complied with and it is those conditions alone that can be tested for compliance. Our independent findings on merit are not controverted by the grounds of appeal or oral submissions, either on fact or by case law, and stand reinforced. 35. We take note that the impugned order has placed reliance on various clarifications issued by Director General of Civil Aviation. That these are in favour of the aircraft operators is not in dispute. The harmonious construct of the finding on obligation of perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transportation of RMC for the mine owners. The fourth condition of the post-negative period is that the activity should performed for a consideration. It cannot also be doubted that the appellant is receiving consideration from the service recipient as is clear from the invoices raised by the appellant to the service recipient. 28. Thus, the appellant has been rendering GTA service by transporting RMC from one place to another as per the directions of the service recipient. The finding to the contrary recorded in the impugned order by the Commissioner that the appellant was not performing GTA service but was performing STG service cannot be sustained. 6. From the above decision of the principal Bench of this Tribunal, it can be seen that the facts such as transportation of RMC by similar vehicles for M/s. Ultratech Cement Limited for transportation from M/s. Ultratech Cement Limited plant to the customer's site of M/s. Ultratech Cement Limited, it was held that appellant in that case are rendering GTA service by transportation RMC from one place to another as per the direction of the service recipient. Therefore, the same is not classifiable under supply of Tangible Goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aircraft for charter operations. This is for the reason that: a. NSOP (passenger) is a much wider category and specifically includes charter operations in which the entire aircraft is given for hire or reward by charging remuneration from the hirer; b. Where the regulatory requirements under the CARs itself permit the NSOP (passenger) holder to carry out charter operations, it would not be correct on the part of the department to contend that NSOP (passenger) holder cannot carry out charter operations and that these services are mutually exclusive; c. DGCA has unequivocally clarified that charter operations are permissible. It is the DGCA which is empowered to issue CARs under rule 133A of the Aircraft Rules. Thus, NSOP (passenger) permit holder can carry out charter operations. (iv) Only because some flights 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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