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The issue in these cross appeals is whether the appellant  importer of helicopters, has breached Condition No. 104 contained in Customs Notification No. 21/2002 (as amended by Notification No. 61/2007) rendering it liable to payment of duty on the import of the 2 helicopters, for which it had previously claimed exemption from duty in terms of the said Notification. Condition No. 104 reads as under: -

(i) The aircraft are imported by an operator who has been granted approval and by the competent authority in the Ministry of Civil Aviation to import aircraft for providing nonscheduled (passenger) services or non-scheduled (charter) services and

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 non-scheduled (charter) air transport operator, for 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.

* In April 2008, no flights on 5,11,13,28 Apr and on other days1- 6 flights per day, passengers from 8-32 persons on a given day and cargo ranging from 0 kg- 60 kgs [Pg 216 DA] * In March 2008, no flights on 2nd to 5th March, 7th, 8th, 10th, 13th, 14th, 16th, 21st, 23rd, 30th& 31st March. On other days between 1- 6 flights a day, on some days no flight, passengers from 13-35 on a given day and cargo ranging from 0 kg- 58kgs[Pg 218 DA] * In Feb 2008 no flights on 3rd, 5th, 10th, 15th, 17th, 19th, 22nd 24th to 26th Feb 08; on other days flights ranging from 1- 7 flights per day, passengers ranging from 7- 59, and cargo ranging from 0 kgs- 87 kgs[Pg 226 DA] * In Jan 2008 helicopter made available only from 21st Jan 08 to 31 Jan 08,of which no flights were made on 22nd 26th and 27th Jan 08; on other days flights ranging from 1- 7 flights per day, passengers from 9- 56 [Pg 230 DA] 4.4 It is further urged that by no stretch of imagination the services offered by the appellant importer, come under the definition of non-scheduled - Charter as contained in explanation (c) of the Condition No. 104 which provides that 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 of who is registered with and approved by the Director General Civil Aviation for such purposes, and who conforms to the Civil Aviation Requirements (CAR) under the provisions 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.
Explanation - For the purpose of this entry:-
(a) Operator means a person, organization, or enterprise engaged in or offering to engaged in aircraft operation.
(b) non schedules (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 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 provisions of the rule 133A of the Aircraft Rules, 1937;