JUDGMENT :

[Vibhu Bakhru, J.]

Introduction

1. The appellant (East India Hotels Limited) has filed the present appeal impugning an order dated 14.01.2020, being No. C/A/ 50094/ 2020 CU [DB] (hereafter ‘the impugned order’), passed by the Custom, Excise and Service Tax Appellate Tribunal (hereafter ‘the Tribunal’). By the impugned order, the learned Tribunal dismissed the appellant’s appeal assailing an order dated 27.07.2010, (order No. VII/Cus. Prev/Adj/Cmmr./12/ElH/08), passed by the Commissioner of Customs (Appeal), Central Excise and Central GST, New Delhi.

2. The learned Tribunal did not accept that the appellant had complied with the conditions for exemption as set out in the Customs Notification No.21/2002-CUS, as amended by Customs Notification 61/2007-CUS (hereafter ‘the Notification’). The learned Tribunal held that the aircraft imported by the appellant was used for private purposes and not for providing non-scheduled (passenger) services or non-scheduled (charter) services. Thus, the Condition no.104 of the Notification was violated.

3. There is no dispute that the aircraft imported by the appellant was used by its officials and the Board of Directors, for travelling to various destinations. According to the appellant, such use of the aircraft in question qualified as providing non-scheduled (passenger) services; therefore, the appellant met the condition for duty exemption under the Notification.

Question of Law

4. In the aforesaid context, the question that arises for consideration is whether the learned Tribunal had erred in misinterpreting the Notification and concluding that the appellant had not complied with the conditions for availing duty exemption under the Notification.

Factual Background

5. On 25.01.2006, the Director General of Civil Aviation (hereafter ‘DGCA’) issued a permit to the appellant to operate the aircraft for providing non-scheduled (passenger) services.

6. On 25.09.2006, the appellant was granted a No Objection Certificate (NOC) by the Ministry of Civil Aviation for importing Hawker 850 XP (hereafter ‘the aircraft’), as a replacement of an earlier aircraft Hawker- 700 (HS -125-700, VT-OBE) into India for a sum of Rs.56.15 crores.

7. On 21.05.2007, the appellant, imported the aircraft and filed a Bill of Entry - Entry No. 21891.

8. In terms of Condition no.104 of the Notification, importers of aircrafts are required to furnish an undertaking to the Deputy Commissioner of Customs/Assistant Commissioner of Customs, committing that the aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services. On failure to comply with the condition to use the aircraft for the afore-mentioned services, the importer would be required to pay an amount equivalent to the duty payable on the said aircraft.

9. In terms of the Notification, on 22.05.2007, the appellant submitted an undertaking to the Assistant Commissioner of Customs, stating that it would be using the aircraft only for providing non-scheduled (passenger) services and that, in the event of failure to do so, it would be liable to pay the requisite duty amounting to approximately Rs.13.92 crores.

10. On 31.05.2007, DGCA issued a certificate of registration for the aircraft in accordance with the Convention on International Civil Aviation dated 07.12.1994, read with the Aircraft Act, 1934 (hereafter ‘the Aircraft Act’).

11. The respondent, issued a Show Cause Notice (SCN) dated 27.06.2008 to the appellant, inter alia, alleging that it had willfully misrepresented and suppressed facts, to import the aircraft for its own private use and thus, evaded payment of customs duty amounting to Rs.13.92 crores. According to the SCN, the appellant was not compliant with the conditions mentioned in the Notification, read with the provisions of the Customs Act, 1962 (hereafter ‘the Customs Act’) and the Foreign Trade Policy.

12. The appellant responded to the SCN by letters dated 14.08.2008, 15.10.2008 and 19.10.20