Custom, Excise & Service Tax Tribunal
East India Hotels Ltd., vs C.C. New Delhi (Import &Amp; General) on 14 January, 2020
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
CUSTOMS Appeal No. 558 of 2010
(Arising out of Order in Appeal No. 20-Commr-HKC-2010 dated 27.07.2010
passed by Commissioner (Appeals), Central Excise & Central Goods and Service
Tax, New Delhi)
M/s. East India Hotels Ltd. ...Appellant
7, Shamnath Marg,
Delhi
Versus
Commissioner of Customs, ....Respondent
Central Excise & Central GST, New Delhi New Customs House, Near IGI Airport, New Delhi 110037 APPEARANCE:
Mr. Narender M. Sharma & Ms. Anandita Saha, Advocates for the appellant Mr. Rakesh Kumar, Authorised Representative for the Respondent CORAM : HON'BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) HON'BLE Ms. RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing: 21.08.2019 Date of Decision: 14.01.2020 FINAL ORDER No. 50094/2020 RACHNA GUPTA
1. The order in original no. 20-Commr-HKC-2010 dated 27.07.2010 has been assailed vide present appeal. The relevant facts in brief for the purpose are that M/s. East India Hotels Ltd.
imported a new aircraft, Hawker 850 XP vide Bill of Entry no. 218981 dated 21.05.2007 with the declared value of Rs. 56.15 crores. The appellant availed an exemption from payment of customs duty under notification no. 21/2002-cus dated 1.3.2002 as amended (Sl. No. 347 C). The importer / appellant had also 2 C/558/2010 obtained a no objection certificate from Director General of Civil Aviation (DGCA) on 20.06.2007 for using the said aircraft for the purpose of non scheduled air transport services, under passenger category.
2. The Department got intelligence that the said aircraft had been imported for private use by the appellant under the guise of non scheduled operator (passenger permit) herein after referred to as NSOP, with sole intention to evade the payment of customs duty. The Department alleging violation of the condition in said notification, provisions of Customs Act 1962 and that of Foreign Trade Policy issued a show cause notice upon appellant bearing no. 5192 dated 27.6.2008 proposing confiscation of the aforesaid aircraft along with the recovery of total customs duty amounting to Rs.13.92 crores as was not paid due to said exemption. The interest under section 28 AB of the Customs Act and the penalties under section 112 read with section 140 of the Customs Act were simultaneously proposed. This proposal has been confirmed by the order in original bearing no. 20-Commr-HKC-2010 dated 27.07.2010. Being aggrieved of the said order that the present appeal has been filed before this Tribunal.
3. We have heard Mr. Narender M. Sharma & Ms. Anandita Saha, Advocates for the appellant and Mr. Rakesh Kumar, Authorised Representative for the Respondent.
4. It is submitted on behalf of the appellant that no condition of NSOP permit as was granted by DGCA in favour of appellants (EIH Ltd.) has been violated by the appellant. It is impressed upon that 3 C/558/2010 once a license is being issued by DGCA, the same cannot be questioned by the licensing authority. It is submitted that the Department cannot refuse the benefit of exemption notification on the allegation that there was mis-representation on part of the appellant / importer of aircraft while availing the said benefit. It is further submitted that the show cause notice is otherwise illegal and without jurisdiction as no show cause notice under section 28 of the Customs Act 1962 can be issued for failure to comply with post importation condition. Otherwise also the show cause notice is issued by Commissioner (Preventive) who is not a jurisdictional Commissioner, hence he is not a proper officer under the provisions of the Act.
5. Learned Counsel in addition has submitted that the impugned aircraft was provisionally released after EIH Ltd. furnished a bond of Rs.56,15,42,299/- and the Bank Guarantee of Rs. 14,03,85,600/- dated 5.7.2008 in compliance of the stay order of this Tribunal dated 1.4.2011. The said Bank Guarantee is still alive and is valid upto 31.3.2020. The same is liable to be released. Learned Counsel has brought to the notice that an order has been passed by this Tribunal in Reliance Transportation and Travel Ltd. vs. CCE New Delhi in appeal no. C/497/2010-Cus (DB) dated 15.10.2018. The Tribunal has held that Reliance Transportation and Travel Ltd. (RTTL) had rightly availed the benefit of exemption and concession of notification no. 21/2002- Cus read with notification no. 61/2007-Cus as amended. The appeal of RTTL has been allowed by the coordinate bench of this 4 C/558/2010 Tribunal by setting aside the order in original passed by the adjudicating authority. It is submitted that the facts of the present case are absolutely identical to RTTL case. Appellant has prayed that the similar order may be passed in the present case as well in favour of the appellants. Appeal is accordingly prayed to be allowed. The learned Counsel has relied upon the decision of this Tribunal in the case of CC New Delhi Vs. Sameer Gehlot reported as 2011 (263) ELT 129 (Tri-Del) wherein it was held that the entire condition no. 104 of Notification no. 21/2002-Cus (Sl. No. 347B) as amended by notification no. 61/2007-Cus is a pre-importation condition. The Tribunal held that these conditions stands complied with by the importer in case he produces DGCA permit for non scheduled air transport services along with an undertaking to the effect that aircraft would be used only for providing said services. Learned Counsel laid emphasis on the recent decision in the case Reliance Transport & Travels Ltd. Vs. CCE New Delhi in Customs appeal no. 497/2010 as was decided on 15.10.2018. Submitting that irrespective there are two contradictory opinions of two co-ordinate benches of this Tribunal and that the matter had already been referred to Larger Bench and as on date it stands subjudiced before Hon‟ble Supreme Court of India. Still this tribunal vide the aforesaid decision in the case of M/s. Reliance Transport and Travels Ltd. has decided the appeal in favour of assessee holding that the permit of the assessee therein has been renewed from time to time by DGCA. Thus, there is no apparent objection by DGCA which is sufficient to 5 C/558/2010 hold that there is no violation of the impugned condition. Decision in the case of Sameer Gehlot's has also been relied upon. Ld. Counsel therefore prayed that order under challenge to be set aside and appeal in hand to be allowed.
6. Department on the other hand has submitted that by using the aircraft for the personnel of the appellant company itself, the appellant has violated the undertaking for using the said aircraft for NSOP purposes as was given to DGCA while taking the license at the time of import of the aircraft and for availing the benefit of exemption from payment of customs duty. As such there is no infirmity in the order under challenge declining the benefit of exemption and demanding the customs duty, the exemption whereof was claimed based on the said condition. Learned DR has relied upon the decision of Mumbai Tribunal in the case of King Rotors and Air Charter Pv.t Ltd. Vs. CC(ACC & Import) Mumbai reported as 2011 (269) ELT 343 (Tri Mum) where the benefit of exemption notification has been denied to the assessee on account of furnishing wrong undertaking to DGCA in compliance of condition no. 104 of the said notification. After having heard the rivals contention of both the parties and perusing the entire record as well as the relevant statutory provisions, we opine that the moot controversy to be adjudicated in this case is:-
Whether the appellant herein has violated condition no. 104 (under sl. No. 347 N) of notification no. 21/2002-Cus as amended by notification no. 61/2007-Cus while importing an aircraft vide B/E 6 C/558/2010 No. 218981 dated 21.05.2007 by not complying with the undertaking as was given to DGCA at the time of said import.
7. Foremost requirement for the purpose is to have a look on the impugned notification which is as follows:
(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 Asstt. Commissioner of Customs, as the case may be, at the time of importation that :-
(a) The said aircraft shall be used for providing non-
scheduled (passenger) services or non-scheduled (charter) services; and
(b) He shall pay on demand, in the event of his failure to use the imported aircraft for the specified purposes, an amount equal to the duty payable on the said aircraft but for the exemption under this notification.
Explanation. - for the purposes of this entry.
(a) Operator means a person, organization, or enterprises engaged in or offering to engage in aircraft operation;
(b) Non-scheduled (passenger) services means, 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 means services provided by a nonscheduled (charter) air transport operator, for 7 C/558/2010 the charter on a hire of an aircraft to any person, with the published tariff, and who is registered with and approved by the 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.
Provided that such Air Charter operator is a dedicated company or partnership firm, for the above purposes.
Notification No. 21/2002 stood amended by Notification No. 61/2007, which provided for exemption of additional duty of customs also."
8. Clause (i) clarifies that import of aircraft is permissible but to an operator who is granted approval by the competent authority in the Ministry Of Civil Aviation to import aircraft for providing non scheduled (passenger services) or non schedule charter services (hereinafter called as NSOP/C). In respect of import of aircraft there has been a DGFT notification no. 2(RT-6)2004-09 dated 7.4.2006. This notification allows import of aircrafts and helicopters by a person who has been granted permission by the Ministry of Civil Aviation, Government of India for operating scheduled or non scheduled air transport services subject to the condition that the import of the aircraft or helicopter and there use is in accordance with that permission. This notification, therefore, clarifies that the use of imported aircraft has to confirm to the permission granted by Ministry of Civil Aviation.
9. The minimum requirements for grant of permit as mentioned above, Ministry of Civil Aviation has to relate to: 8
C/558/2010 a. Civil Aviation Requirement Rules. Perusal of these rules, section 3 precisely, clarifies that while issuing the permit to a non scheduled operator, he has to clarify as to whether the aircraft is to be used in private category or as a non- scheduled operator. This article therefore clarifies that NSOP is different from the private aircraft operator. b. This observation further stands clarified from air transport circular no. 998 dated 21.4.1998 which makes a specific categorisation of NSOP/C flight into following:
i. International Cargo Freight
ii. Non Revenue passenger charter flight:
a. Private aircraft owned by individuals
b. Private aircraft owned by companies / corporations iii. Aircraft belonging to non scheduled / scheduled operators.
c. Further, Rule 3(43) of Aircraft Rules 1937 defines the private aircraft as an aircraft other than the public / passenger transport.
d. Rule 3(39) of Aircraft Rules 1937 defines passenger aircraft as an aircraft which effects the public transport of passengers. The definition also find place under Rule 3(45) thereof. Also DGCA vide letter dated 30.7.2010 clarified that a non revenue charter flight will fall under the category of private flight.
10. To give further elaboration to the observation that the Aviation Rules and Aircraft Rules intend to create a distinction 9 C/558/2010 between public and private operators, we bank upon the meaning of word public in popular dictionary of English. We observed that a. Collin‟s Dictionary of English described public to mean:
Community or people in general, New World Dictionary explains public to be people as a whole or community at large, b. As per New Shorter Oxford Dictionary public is to mean:
Public collectively and the c. Concise Oxford English Dictionary explains public as:
Ordinary public in general, the community at large, d. Oxford Advanced learners Dictionary has given the meaning to public as:
Ordinary people in society in general.
11. Sub clause 1 of the impugned notification talks about non scheduled / passenger charter services, we need to know as to how statute defines these services. It is observed that the definition of non scheduled services is given in this notification itself in explanation (C) thereof as quoted above. The basic characteristics of NSOP appears to be as follows:
a. Aircraft is used either passenger or charter air transport services.
b. On hire or on published tariff.10
C/558/2010 c. Aircraft is such as is registered with Directorate General of Civil Aviation (DGCA).
d. To be used for such purpose as declared DGCA and approved by it.
e. It must confirm to civil aviation requirement in terms of Rule 133 A (applicable to non scheduled air transport services (charter services) Rules 1937).
12. From the above discussion, we are able to hold that there are three categories of airport transport services operators:
a. Scheduled air transport services operators (SOP) b. Non scheduled air transport services operators passenger or charter (NSOP/C) c. Private Operators Under the impugned notification condition no. 104 to avail the benefit of exemption from payment of customs duty, any of these operators may import an aircraft, however the exemption under Notification No.21/2002-Cus dated 01.03.2002 as amended is available only to SOP and NSOP/C and that to private operators. Scheduled air transport (SOP) services is defined under Rule 3 (49) which is para materia to clause 3.2 of Civil Aviation Rules which says that it is the air transport services undertaken between the two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognisably systematic series, each flight being open to use by members of the public. Aircraft rules define non scheduled air transport services is under Rule 3(49) of Aircraft Rules which is 11 C/558/2010 para materia to clause 3.3 of CAR to mean air transport service other than scheduled air transport service being operated for carriage of passengers, mail and goods and includes charter operations. Word air transport has also been defined In Rule 43 of Aircraft Rules to mean all carriage of person effected by aircraft for a remuneration in any nature whatsoever and all carriage of persons or things effected by such aircraft with such remuneration, if the carriage is effected by an air passenger undertaking."
13. These definitions are sufficient for us to hold that the only difference between two types of air transport services i.e. SOP & NSOP/C lies in the simple fact that one is a scheduled while other is non scheduled (the words passenger and air transport service shall carry the same meaning for the both as discussed above). This would mean that scheduled air transport services involve flight services operated on the basis of a schedule of time whereas the non scheduled air transport services are without any time schedule for the flights. We draw support to this observation from clause 9.2 of passenger CAR which while dealing with non scheduled operator and their operation says "in such operations the operator shall not publish their time schedule as the operations are of non scheduled nature". Other features are common to both scheduled and non scheduled services.
13A Thus we are of the opinion from the above discussion that scheduled as well as non scheduled air transport services firm (whether for passenger or charter) are open to use by the members of public and as such stands distinguished from what can 12 C/558/2010 be called as private use of the aircraft. The another thing which distinguishes scheduled air transport services and non scheduled from being called as the private use of aircraft is being published tariff / hire charges / remuneration against use of the said aircraft by any group but of public. Coming to the clause 2 of the impugned notification where lies the impugned controversy we observe that this notification if read as a whole has two conditions to be complied with at the time of import of aircraft while seeking the exemption from payment of customs duty:-
a. Approval by competent authority in the Ministry Of Civil Aviation to import the aircraft;
b. Furnishing and undertaking by the importer at the time of import to the competent authority i.e. (DGCA) to the effect that the said aircraft shall be used for providing non scheduled passenger / charter services.
14. In the present case as per the Department, this undertaking has been violated due to which the importer appellant is denied exemption of customs duty as was extended to him at the time he importered the aircraft. The DR has relied upon the King Rotors & Air Charter Case (Supra).
15. Per contra it is the case of the appellant that there is no violation of the said undertaking as the competent authority i.e. DGCA is renewing the permit given to the appellant from time to time. While laying this emphasis learned counsel has re-impressed upon the case of Sameer Gahlot (Supra).
13
C/558/2010
16. We observe that both these decisions are diagonally contrast decision rendered by two coordinate benches of this Tribunal due to which a reference was made for the matter to be considered by the Larger Bench. However, before Larger Bench could take into consideration the impugned controversy that the pendency of another appeal titled as CC Mumbai Vs. Global Vectra Helicorp Ltd. 2016 (332) ELT A188 (SC) involving the same issue of violation of the undertaking given in furtherance of notification no. 61/2007-Cus dated 3.5.2007 before the Hon‟ble Supreme Court was brought to the notice and the Larger Bench thus kept the issue pending till the decision of the Hon‟ble Apex court. However, subsequently the Division Bench of this Tribunal in Reliance Transport and Travels Ltd. (Supra) case has decided similar controversy in favour of the appellant importer therein distinguishing the facts of Reliance Transport and Travels Ltd. case from the case of King Rotors & Air Charter as well as that of Sameer Gehlot's.
17. The Division bench has specifically held that facts herein are at variance. Support has been drawn from the decision of Hon‟ble Supreme Court in the case of Collector Vs. AI Noori Tobacco Products-2004 (170) ELT 135 (SC).
In the present case we are also of the firm opinion that facts of the present case are different from the case of King Rotors & Air Charter (Supra) and that of Sameer Gehlot (Supra) because the main allegation qua the violation of undertaking was based on the fact that the undertaking was given for using the aircraft only for 14 C/558/2010 NSOP (passenger service) whereas the assessee therein were found to use the same for NSOC (charter services). Both the cases are pre 2010 when there had been an amendment in this notification. With the introduction of new CAR issued by DGCA on 1.6.2010, it has been clarified that non scheduled air transport services can be the passenger as well as charter services simultaneously.
18. Prior to amendment clause (ii)(a) of the notification used to read as:
"The aircraft shall be used only for providing non scheduled passenger services or non scheduled charter services, as the case may be"
Whereas new CAR 2010 rules read this condition as:
"The aircraft shall be used for providing non scheduled passenger services or non scheduled charter services."
19. The deletion of word "only" and "as the case may be" clarifies that prior this deletion the importer / assessee, at the time of import of aircraft had to undertake that the use of aircraft shall be either for Non Scheduled Passenger Services (NSOP) or for non scheduled charter services, (NSOC) whereas post said deletion by way of amendment in year 2010 the undertaking given in terms of condition no. 104 of the impugned notification includes providing both or either of the kind of services without specifying the same in the undertaking. Hence we are of the opinion that irrespective of pendency of issue related to this notification before the Hon‟ble Apex Court, the facts of these other cases are very much different 15 C/558/2010 from the facts o the present case, the earlier cases being prior the amendment of year 2010 and the present one being post amendment in CAR. The issue in the earlier cases is as to whether undertaking for using the aircraft for non-scheduled operator services includes the use thereof for non-scheduled charter services. The amendment of CAR 2010 clarifies that both are inclusive. The issue in the present case primarily is whether the undertaking for using the imported aircraft of non-scheduled passenger / charter services includes the use thereof only for private purposes or not.
20. Reverting back to the present case, since the undertaking has been given for using the imported aircraft for NSOP/C services published tariff to the public is still the mandatory requirement. Clause 2 of condition no. 104 of notification no. 21/2002 as amended by 61/2007, lays down the requirement that the importer has to furnish the undertaking to the Customs Department to use the imported aircraft only for an avowed purpose. As mentioned in the said undertaking, the purpose of such undertaking is to avail the exemption of customs duty which otherwise were to be paid to the Customs Department except in case of the use of the imported aircraft for the specific purpose in a specified manner as mentioned in the said undertaking. It becomes absolutely clear that any breach of such undertaking will definitely be actionable. From this discussion we hold that furnishing of undertaking by the importer to the Ministry of Civil Aviation (DGCA) to make the specific use i.e. NSOP/C of the said aircraft is sufficient to permit the import of the 16 C/558/2010 aircraft, that too with exemption from payment of customs duty. This undertaking binds the importer that he shall use the aircraft for NSOP/C. This indicates that the said use of the aircraft will be possible only after the aircraft is imported pursuant to the said permission of DGCA. Accordingly, we held that the nature of use as to whether it is in terms of the undertaking given or not. can be appreciated only post import.
21. The sole motive of impugned notification is to get exemption from customs duty which is the domain of Customs Department, DGCA has no concern beyond taking on record the furnished undertaking. It shall be a duty of Customs Department only to ensure as to whether the importer after putting the imported aircraft to use, is continuing to be eligible to remain exempted from paying customs duty as per the terms of undertaking furnished by him. Otherwise also, impugned notification has been issued in furtherance of section 25 of Customs Duty Act and the exemption from payment is towards customs revenue. It is definitely the Customs Department‟s duty to ensure continuous compliance of the undertaking as was furnished by the importer at the time of importing the aircraft. As already discussed above, the usage of aircraft for NSOP/C services continuously against the published tariff the passengers who are none but the public will satisfy the continuous compliance of the said undertaking. Absence of any of these conditions will make the usage different from NSOP/C services and the said variation will definitely amount to violation of the said undertaking and the benefit of exemption from payment of 17 C/558/2010 customs duty as was extended to the importer of aircraft at the time of import thereof shall not be allowed to continue to still be available to the importer.
22. Notifications otherwise have to be strictly and rigidly followed. Interpretation should also be rigid unless and until is required for the intent of legislature. The exemptions from payment of customs duty are granted to the importers with the sole object of extending some benefit to the public at large. Otherwise there seems no reason to have any such exemption clause to air transport service operators. As already discussed above private operators have been differentiated from the scheduled / non scheduled air transport passenger services. Thus we are of firm opinion that any usage of imported aircraft, if amounts to private usage of the said aircraft though under the guise of it being non scheduled NSOP/C air transport services, the same shall definitely be in violation of the undertaking as furnished under condition no. 104 of the impugned notification. Since in absence of the said undertaking the importer was liable to pay customs duty while importing the aircraft, the violation of the undertaking subsequent thereto shall definitely be a case of non payment of customs duty. We therefore, hold that the Customs Department has committed no error while initiating the investigation the Commissioner (Preventive) has committed no error while confirming the demand of customs duty as was allowed to be exempted at the time of import pursuant to the undertaken for using the imported aircraft for NSOP/C used.
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C/558/2010
23. We conclude from the above discussion in the terms that for seeking the benefit of impugned notification two conditions were required (as already quoted above). The former that is taking an approval from Civil Aviation subject to impugned undertaking as a pre import condition and verifying the compliance of the said undertaking as a post import condition. This finding has been corroborated from clause (ii)(b) of Condition no. 104 of the Notification no. 21/2002 as amended by 61/2007 which has already been quoted above. A perusal makes it abundantly clear that in the event of importer failing to use the imported aircraft for the purpose as is specified in the undertaking that an amount equal to the duty payable on the said aircraft shall be paid by the importer on demand. The amount to be paid apparently and admittedly is the amount of customs duty which was to be paid at the time of import at the undertaking for using the aircraft for the specified purpose i.e. NSOP/C being given. Clause 2A thus clarifies that the correlative right to monitor the manner of use of the aircraft and determine whether it was being used for the said purpose as undertaken vests in Customs Department. The DGCA authority to monitor the manner of utilisation of the permit is subtly another thing which can in no way effect the jurisdiction of the Customs Department. Hon‟ble Supreme Court in the case of Shashank Sea Foods Pvt. Ltd. Vs. UOI reported as 1996 (88) ELT 626 (SC) while considering analogues question in reference to another notification no. 116/1988-Cus held as follows:
"We do not find in the provisions of import and export policy or the handbook of procedure issued by Ministry of Commerce, 19 C/558/2010 Government of India, anything that even remotely suggest that the aforesaid power of Customs authority had been taken away or abridged or that an investigation into such alleged breach could be conducted only by the licensing authority that the licensing authority (DGCA in the present case)."
24. In that case, the licensing authority therein (Ministry of Finance) was empowered to conduct such an investigation as far as downsize of the said notification were concerned while Hon‟ble Apex Court held that such power does not by itself preclude the Customs Authority from doing verification on their part.
25. In the present case, neither the Civil Aviation Rules nor Aircraft Rules empower DGCA to investigate about the compliance of the undertaking. The undertaking is given in furtherance of the notification issued by the Customs Department in compliance of the Statutory Provisions of the Customs Act 1962. The verification as to whether the benefit of exemption from payment of customs duty should continue or not is opined definitely to lie with Customs Department only.
26. In the facts of the present case we observe that the appellant has imported Hawker 850 XP aircraft pursuant to the permission / no objection certificate give by the Ministry of Civil aviation vide B/E No. 21898 dated 21.5.2007. The undertaking as is required under the impugned notification was furnished by the importer appellant on 22.5.2007 to the effect that the aircraft once imported would only be used for providing non scheduled air transport services (passenger only). No doubt the permit is renewed from 20 C/558/2010 time to time. It was specifically stated in the undertaking as follows:
"We further undertake to pay on demand, in event of failure to use the said imported aircraft for the specified purse, an amount equal to the duty payable on the said aircraft but for the exemption under the notification no. 21/2002-cus sl. No. 347 (P) Condition no.
104." Irrespective permit is renewed from time to time but it was not only noticed by the Custom Department but has also been admitted by the importer and as also otherwise apparent from the passenger logbook and passenger manifest that the chairman of the appellants company and other officers of the company have frequently travelled under the category of non revenue flight which can only be for personal use of the company and its officials. The said voluntary statement as never been retracted by the appellant except refuting allegations on the ground that the NSOP permit has been renewed from time to time by DGCA in their favour.
27. Applying the entire above discussion to the facts of the present case, we hold that restricted use of the imported aircraft under the impugned notification only for a particular category of the people takes the use of the said aircraft from the ambit of what is called as „passenger services‟ which are otherwise meant to be open to public. No doubt the restricted group is a part of public and the person in the group are in any case the member of the public but the use of the aircraft which has been undertaken to be used for public as such if gets restricted to a particular group irrespective that restricted group is paying revenue or not it comes 21 C/558/2010 out of the ambit of the authorised public use of such imported aircraft. The notification condition requires not merely the payment of revenue per usage of such aircraft either for passenger or for charter services; either against the issuance of individual tickets or the price for the aircraft as a whole in case of charter, it requires that the use of the aircraft has to be kept open to public at large or to any other group of the said public not so restricted as to mean private; it shall forfeit the intention of legislature. It has been brought to the notice that Global Vectra Case stands decided by Hon‟ble Apex Court with following findings:
"Offering service to the public at large also included entering into agreement for providing regular service to a few members of the of the public on a regular basis over a period of time. The expression person included company which also forms part of the general public. Further, printing of tickets was not the essential requirement of the Notification. Therefore, denial of benefit of Notification no. 21/2002-Cus as amended by Notification no. 61/2007-Cus on the ground that imported helicopters were not used in providing non-scheduled passenger services and no printing tickets issued, could not be justified."
28. The Department‟s circular that the benefit of notification is still available if the aircraft is providing NSOP/C certificate to the related or group company the same also doesn‟t hold good in the present case because there is no evidence about anyone else except the Oberoi Group to have used the impugned aircraft in the given circumstances that too without any tariff. The usage, of the impugned aircraft post import is not for non scheduled passenger/ charter air transport services but only for private use. The same amount to violation of the undertaking based upon which the 22 C/558/2010 exemption was granted to the appellant from paying the customs duty. Consequent to the said violation the appellant has made himself liable to pay the said customs duty as if he has failed to pay the same at the relevant point of time to the jurisdictional customs authority from any point of imagination cannot be ruled out. They are held to vest with the jurisdiction to demand the customs duty. Since the benefit of exemption has been claimed by giving an undertaking whereupon the appellant has failed to stand with the possibility of intent of the appellant to evade said duty at the time of import of the aircraft cannot be ruled out especially when there is no evidence produced on record by the appellant.
29. In the light of the entire above discussion we do not find any ambiguity or infirmity in the order under challenge. Same is hereby upheld. Appeal stands dismissed.
(Order pronounced in the open court on 14.01.2020) (C.L. MAHAR) MEMBER (TECHNICAL) (RACHNA GUPTA) MEMBER (JUDICIAL) Bhanu