Page 207 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] COMMR. OF CUS. (AIRPORT & ADMN.), KOLKATA v. JET AIRWAYS (INDIA) LTD. 597

CASES CITED
Interglobe Aviation Limited v. Commissioner — 2018 (360) E.L.T. 170 (Tribunal) — Referred ... [Para 3]
Wipro Ltd. v. Assistant Collector — 2015 (319) E.L.T. 177 (S.C.) — Relied on ................................. [Para 7]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Letter No. 40/2/63-Cus.IV, dated 24-4-1971 .................................................................... [Para 2]
REPRESENTED BY : Shri S. Guha, AR, for the Appellant.
None, for the Respondent.
[Order per : P.K. Choudhary, Member (J)]. - In these cases the Revenue
has filed the instant appeals against Order-in-Appeal No. KOL/CUS (Air-
Port)/AA/535/2018, dated 6-3-2018 passed by the Commissioner of Customs
(Appeals), Kolkata.
2. The brief facts of the case are that the appellant is involved in flight
operation from Kolkata to Dhaka and from Dhaka to Kolkata from NSSCBI Air-
port, Kolkata. The Aviation Turbine Fuel (hereinafter referred to as “ATF”) in
tank of the aircraft is recorded by engineers of the appellant at the time of con-
version of the flight for international run as well as on reversion into domestic
run. Accordingly, a detailed report is submitted with the Customs authorities. As
per the procedure, the Customs authorities certify the quantity of ATF before
departure to international locations as well as quantity of ATF before departure
to domestic after international run.
As prescribed by the Ministry of Finance, letter issued vide F. No.
40/2/63-Cus.IV, dated 24-4-1971; the appellant had been paying Customs duty
on the remanant ATF in the tank of aircraft on a monthly basis on self-
assessment. Following the same procedure, the appellant submitted the monthly
calculation sheet/self-assessment of remanant ATF dated 9-3-2016 for the month
of Feb., 2016 to the Customs authorities at NSCBI airport. The authorities while
assessing the duty liability took freight charges at the rate of 20% on the assessa-
ble value on notional basis under Rule 10 of CVR, 2007. The said additional duty
was paid by the appellant under protest with the Customs authorities. The ap-
pellant also claims the benefit of Notification No. 151/94-Cus., dated 13-7-1994 at
the later stage which exempts “fuel in the tanks of aircrafts at the time of arrival
from an international destination from payment of Customs duty to the extent of
the quantity of the said fuel equal to the quantity of the same type of fuel which
was taken out of India in the tanks of the aircrafts at the time of departure to an
international destination.”
3. Being aggrieved with the assessment order, M/s. Jet Airways (India)
Ltd. filed an appeal before the Learned Commissioner of Customs (Appeals),
Kolkata. The Learned Commissioner (Appeals) has observed that the lower au-
thority has charged the freight @ 20% of the invoice value on notional basis as
per Rule 10 of Customs Valuation Rules, 2007. In this regard he found that the
consumption of fuel depends on various factors and when the aircraft completes
the inward journey to reach the Indian airport, certain quantity is leftover in the
tanks of aircraft. Accordingly, the freight element is not attributable to such fuel
as there is no transport of fuel as cargo for the levy of freight. In this regard, he
found that the Tribunal in the case of M/s. Interglobe Aviation Ltd. v. Commissioner
of Customs, IGI Airport, New Delhi as reported in 2017-TIOL-3169-CESTAT-DEL =
2018 (360) E.L.T. 170 (Tri. - Del.) has held as follows.

EXCISE LAW TIMES  15th May 2020  207