Commissioner of Customs Vs Global Vectra Helicorp Ltd. (Delhi High Court)
Delhi High Court held that as per explanation inserted to Condition No. 104, exemption condition would be satisfied if the aircraft imported is used for non-scheduled (passenger) services or non-scheduled (charter) services. Accordingly, use of imported aircraft by non-scheduled (passenger) services, shall not be construed to be a violation of conditions of imports at concessional rate of duty.
Facts- The Commissioner of Customs (Preventive) had issued a show cause notice dated 06.08.2008 in respect of three helicopters, which were imported by the respondent by availing the benefit of the Exemption Notification. It was, inter alia, alleged in the said show cause notice that the helicopters were imported for ‘non-scheduled air transport (passenger) service’; however, the said helicopters were not used for the said purpose. It was alleged that the respondent has not complied with the Civil Aviation Requirement, Section 3, Air Transport Service ‘C’, Part 3 dated 08.10.1999, which requires the non-scheduled operators to issue passenger tickets in accordance with the provisions of Carriage by Air Act, 1972. It was further alleged that the respondent had charged fixed monthly charges for the period August, 2007 to January, 2008 from M/s Vectra Aviation Pvt. Ltd. – a group company of the respondent – therefore the helicopters were not used for non-scheduled (passenger) services. It was alleged that this was in violation of the Condition No.104 of the Exemption Notification and thus the respondent was liable to pay duty.
In respect of another helicopter, it was, inter alia, alleged that the same was given on a long-term lease contract to M/s Dhillon Aviation Pvt. Ltd. and the same was in violation of the Exemption Notification as the permit obtained by the respondent was for non-scheduled (passenger) services.
In view of the allegations contained in the show cause notice, the respondent was called upon to show cause as to (a) why the helicopters should not be confiscated under Section III(d) and 111(o) of the Customs Act, 1962 (hereafter the ‘Customs Act’); (b) penalty under Sections 112 and 114A of the Customs Act not be imposed; (c) and an amount of ₹23,79,24,458/- along with interest be not recovered as customs duty in respect of the three aircrafts.
Conclusion- Exemption notification no. 21/2002-Cus dated 01.03.2002 as amended by notification no. 21/2011-Cus dated 01.03.2011. Accordingly, an explanation has been added to Condition No. 104. The explanation states that use of such imported aircraft by a non-scheduled (passenger) operator for nonscheduled (charter) services or by a non-scheduled (charter) operator for non-scheduled (passenger) services, shall not be construed to be a violation of the conditions of import at concessional rate of duty.
Held that although, the requirements of Condition No.104 of the Exemption Notification are unambiguous but the aforesaid explanation inserted by way of amendment of Condition No.104 of the Exemption Notification amply clarifies that the exemption condition would be satisfied if the aircraft imported is used for non-scheduled (passenger) services or non-scheduled (charter) services.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. We have heard the counsel for the parties.
2. The Revenue has filed the present appeal impugning an order dated 22.09.2022 (Final Order No.50920-50928/2022, hereafter the ‘impugned order’) passed by the Customs, Excise & Service Tax Appellate Tribunal (hereafter the ‘Tribunal’) in Customs Appeal No.415/2009 filed by the respondent.
3. The impugned order is a common order which also disposed of the Revenue’s cross objections (Cross Objection No.212/2009) in Customs Appeal No.415/2009 as well as eight other appeals filed by the Revenue.
4. The principal controversy involved in the present appeal relates to the compliance of Condition No.104 of the Exemption Notification no. 21/2002-Cus dated 01.03.2002 as amended by Notification No.61/07-Cus dated 03.05.2007 (hereafter the ‘Exemption Notification’).
5. The Commissioner of Customs (Preventive) had issued a show cause notice dated 06.08.2008 in respect of three helicopters, which were imported by the respondent by availing the benefit of the Exemption Notification. It was, inter alia, alleged in the said show cause notice that the helicopters (Registration No.VT-AZV and Registration No.VT-AZU) were imported for ‘non-scheduled air transport (passenger) service’; however, the said helicopters were not used for the said purpose. It was alleged that the respondent has not complied with the Civil Aviation Requirement, Section 3, Air Transport Service ‘C’, Part 3 dated 08.10.1999, which requires the non-scheduled operators to issue passenger tickets in accordance with the provisions of Carriage by Air Act, 1972. It was further alleged that the respondent had charged fixed monthly charges for the period August, 2007 to January, 2008 from M/s Vectra Aviation Pvt. Ltd. (hereafter ‘Vectra’) – a group company of the respondent – therefore the helicopters were not used for non-scheduled (passenger) services. It was alleged that this was in violation of the Condition No.104 of the Exemption Notification and thus the respondent was liable to pay duty.
6. In respect of another helicopter (Registration No.VT-AZX), it was, inter alia, alleged that the same was given on a long-term lease contract to M/s Dhillon Aviation Pvt. Ltd. and the same was in violation of the Exemption Notification as the permit obtained by the respondent was for non-scheduled (passenger) services.
7. In view of the allegations contained in the show cause notice, the respondent was called upon to show cause as to (a) why the helicopters should not be confiscated under Section III(d) and 111(o) of the Customs Act, 1962 (hereafter the ‘Customs Act’); (b) penalty under Sections 112 and 114A of the Customs Act not be imposed; (c) and an amount of ₹23,79,24,458/- along with interest be not recovered as customs duty in respect of the three aircrafts.
8. A tabular statement setting out the import details and the breakup of the customs duty demanded in respect of the three aircrafts is set out below:
