Page 208 - ELT_15th May 2020_VOL 372_Part 4th

598 EXCISE LAW TIMES [ Vol. 372

“Admittedly, the remanant fuel is construed to be an imported item for the
purpose of customs duty. In the importation of such remanant fuel, we
could not discern any separate freight element, which can be added to the
assessable value. The fuel in tank is part of aircraft in operation. “No freight
element is attributable to fuel in the tank, the usage of which varies on dif-
ferent parameters. In other words, the aircraft did not transport ATF on
which a freight element can be attributed.”
“The plain meaning of “freight” is goods that are transported by ships,
planes, trains or lorries/trucks; we note that on this basis it cannot be said
that fuel in the tank of aircraft used for propulsion can be considered as
cargo/goods with attributable cost freight. Further, we note that Rule 10(2)
was applied by the lower authority on the ground that the freight of ATF is
not ascertainable. We note that there is no freight element involved and
hence, there is no application for Rule 10(2).”
The Learned Commissioner (Appeals) has set aside the freight leviable
@ 20% by the lower authority and sent the matter back to the original authority
to re-examine the matter afresh as per law keeping in view the decision and find-
ings observing the principle of natural justice.
4. The Revenue filed the present appeal stating that the order-in-appeal
is neither legal nor proper on the following grounds :-
(i) That the Commissioner (Appeals), vide Order-in-Appeal Nos.
KOL/CUS/(Air-Port)/AA/529/2018, dated 6-3-2018,
KOL/CUS(Air-Port)/AA/535/2018, dated 6-3-2018 and
KOL/CUS(Air-Port)/AA/536/2018, dated 6-3-2018, has decided
the case without due consideration of the facts placed on record.
Thus, the impugned order-in-appeal does not satisfy the test of be-
ing a reasoned order and is liable to be quashed.
(ii) That the appellate Authority has failed to appreciate the evidence
on record in proper perspective, and therefore the findings recorded
by the appellate authority are improper and legally untenable. The
appellate authority has failed to consider the material facts on rec-
ord, legal provisions, gravity of allegations which evidently and
clearly show that revenue’s interests have been prejudiced by the
party causing loss to the national exchequer.
(iii) Commissioner of Customs (Appeals) in the Order-in-Appeal Nos.
KOL/Cus(Air-Port)/AA/529/2018, dated 6-3-2018, KOL/CUS(Air-
Port)/AA/535/2018, dated 6-3-2018 and KOL/CUS)Air-
Port)/AA/536/2018, dated 6-3-2018 has remanded the matter to the
Original Authority to re-examine the matter afresh keeping in view
the decision and finding in preceding paras of the Order wherein he
has set aside the freight leviable @ 20% on notional basis by the
lower authority. It thus appears that the aforementioned impugned
Orders of Commissioner (Appeals) remanding the case is condi-
tional in nature and with definite findings.
(iv) The Commissioner (Appeals) appeared to have ered in not appreci-
ating that a Civil Appeal has been preferred in the Supreme Court
by the Department against the CESTAT Final Order No.
56130/2017, dated 23-8-2017 in the case of M/s. Interglobe Aviation
Ltd. and therefore the case which is relied upon by Commissioner
EXCISE LAW TIMES  15th May 2020  208