$~9 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CUSAA 39/2023 COMMISSIONER OF CUSTOMS (PREV.) .....Appellant Through: Mr. Harpreet Singh, Senior Standing Counsel alongwith Ms. Suhani Mathur, Mr. Iqbal Singh Bedi & Mr.

Jatin Kumar Gaur, Advs.

versus BHARAT HOTELS LTD. .....Respondent Through: Mr. V. Lakshmikumaran, Mr.Yogendra Aldak, Mr. Kunal Kapoor & Mr. Yatharth Tripathi, Advs.

CORAM:

HON'BLE MR. JUSTICE NITIN WASUDEO SAMBRE HON'BLE MR. JUSTICE AJAY DIGPAUL

O R D E R

% 03.02.2026

1. We have heard the respective counsels at length.

2. We equally peruse the order in original dated 20^th November, 2009 so also the order of the Customs, Excise & Service Tax Appellate Tribunal (“CESTAT”), which is the impugned order in the present appeal.

3. This Court has already framed a question of law vide order dated 10^th October, 2023 which reads thus:

a. “Whether the respondent could have been deprived of the exemption as contemplated under Condition No 104(ii)(a) of Customs Notification dated 03 May 2007 merely because the charter plane was briefly used for ferrying passengers for free?”

4. Mr. Harpreet Singh, learned Senior Standing Counsel for the appellant-Commissioner of Customs has invited our attention to the judgment of Division Bench of this Court delivered on 31^st January, 2023 in CUSAA No.5/2020 in the matter of East India Hotels Limited Vs.

Commissioner of Customs, Central Excise and Central GST, New Delhi

5. According to him, this Court has already taken a view that in the given facts and circumstances of the case, the violation of the condition wherein custom benefits were passed on to the respondent can be inferred to the benefit of the appellant and to the detriment of the respondent. According to him, the appeal, as such, is covered by the aforesaid judgment. 6. The aforesaid fact is disputed by the counsel appearing for the respondent, who has invited our attention to the order dated 5^th April, 2023 passed by the Apex Court in Special Leave to Appeal Nos.5834-5835/2023 in the matter of East India Hotels Limited Vs. Commissioner of Customs Central Excise and Central GST New Delhi, wherein the aforesaid Division Bench judgment of this Court was questioned.

7. According to him, the said order is self-explanatory and that being so, he would urge that the issue warrants in depth consideration, particularly, having regard to the license and purpose for which the aircraft was imported by the respondent. He has tried to rely on the provisions of Rule 3 of the Aircraft Rules, 1937, the purpose for which the aircraft was imported viz.

charter services.

8. We have considered the rival submissions.

9. We are of the view that awaiting the decision of the Apex Court in the matter of East India Hotels Limited (Supra) and in view of the order in original passed by the authorities so also the order of the Apex Court referred hereinabove, it will be appropriate to admit the appeal on the question of law framed by this Court as reproduced hereinabove.

10. We further direct respondent to furnish the bank guarantee of Rs.7 crores, as was directed under the order in original. Let the bank guarantee be furnished within a period of four weeks from today.

11. Needless to clarify that till the further hearing, the respondent shall continue to renew the bank guarantee till the decision of present appeal, however, the bank guarantee will not be encashed without prior approval from the Court.

12. We further permit the parties to mention the matter once the Apex Court decides the issue in the matter of East India Hotels Limited (supra)

13. List on 10^th August, 2026.

NITIN WASUDEO SAMBRE, J AJAY DIGPAUL, J FEBRUARY 3, 2026 Ab/st