Custom, Excise & Service Tax Tribunal
M/S. National Aviation Company Of India vs Commissioner Of Customs (Airport & ... on 13 December, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
STAY PETITION NO.C/S/644/09
AND
CUSTOMS APPEAL NO.C/387/09
[ARISING OUT OF ORDER-IN-ORIGINAL NO.KOL/CUS/AIRPORT/ADMN/14/09 DATED 31.03.2009 PASSED BY COMMISSIONER OF CUSTOMS (AIRPORT & ADMINISTRATION), KOLKATA]
FOR APPROVAL AND SIGNATURES OF
SHRI S.K.GAULE, HONBLE MEMBER(TECHNICAL)
DR. D.M.MISRA, HONBLE MEMBER(JUDICIAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/S. NATIONAL AVIATION COMPANY OF INDIA
APPELLANT (S)
VERSUS
COMMISSIONER OF CUSTOMS (AIRPORT & ADMINISTRATION), KOLKATA
RESPONDENT(S)
APPEARANCE:
SHRI MANOJ ARORA, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S. CHAKRABORTY, ASSTT. COMMR.(A.R.) FOR THE RESPONDENT(S).
CORAM:
SHRI S.K.GAULE, HONBLE MEMBER (TECHNICAL) DR. D.M.MISRA, HONBLE MEMBER (JUDICIAL) DATE OF HEARING & DECISION: 13.12.2011 ORDER NO Per SHRI S.K.GAULE After hearing both sides, we find that the Appeal itself can be disposed of at this stage. Accordingly, after granting stay, the Appeal is being taken up for disposal.
2. Learned Counsel appearing for the Appellant brings to our notice that the earlier Customs appeals (CAs.94-96/07) on the same issue in the case of Indian Airlines vs. CC(Airport & Admn.), Kolkata has been remanded by this Tribunal for de novo adjudication, vide this Tribunals Order No.S-78-80/A-151-153/KOL/2010 dated 22.02.2010. The operative portion of the said Order is reproduced below:-
4. We find that the notification No.151/94-CUS provides set off in respect of the duty paid on A.T.F. which was on board at the time of aircraft leaving India on the foreign run and applicant had produced the evidence regarding duty paid ATF on board at the time of foreign run by way of Annexure-Il as it is evident from the letter dated 10 November, 2006 and the same has not taken into consideration. In these circumstances, the matter requires reconsideration by the adjudicating authority therefore the impugned order is set aside after waiving the requirement of pre-deposit of duty and penalty and the matter is remanded to the adjudicating authority for de novo adjudication to decide the matter afresh, after affording opportunity of hearing to the applicants. Both the sides are at liberty to produce evidence in support of their claims.
3. Since in this case also, the matter in respect of duty paid on A.T.F., which was on board at the time of aircraft leaving India on the foreign-run and the evidence produced by the Appellant to that effect, require re-consideration.
4. In view of these circumstances, the case is remanded to the Adjudicating Authority for de novo adjudication, to decide the matter afresh. Both sides are at liberty to produce the evidence in support of their claims. It is made clear that all the issues are kept open. Needless to say that a reasonable opportunity of hearing may be granted to the Appellant. The Stay Petition and the Appeal are disposed of, as indicated above.
Dictated and pronounced in the open court.
Sd/-14.12.11 Sd/-14.12.11
(D.M.MISRA) (S.K.GAULE)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
DUTTA/
2
CUSTOMS APPEAL NO.C/387/09