{"id":30072,"date":"2002-07-24T00:00:00","date_gmt":"2002-07-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-airlines-ltd-vs-commissioner-of-customs-on-24-july-2002"},"modified":"2015-08-05T10:15:53","modified_gmt":"2015-08-05T04:45:53","slug":"indian-airlines-ltd-vs-commissioner-of-customs-on-24-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-airlines-ltd-vs-commissioner-of-customs-on-24-july-2002","title":{"rendered":"Indian Airlines Ltd. vs Commissioner Of Customs on 24 July, 2002"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Indian Airlines Ltd. vs Commissioner Of Customs on 24 July, 2002<\/div>\n
Equivalent citations: 2002 (83) ECC 345, 2002 (150) ELT 496 Tri Del<\/div>\n
Bench: S Kang, A T V.K.<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
V.K. Agrawal, Member (T)<\/p>\n
1. The issue involved in this Appeal, filed by M\/s. Indian Airlines Ltd., is whether the exemption from payment of duty under Notification No. 19\/94-Cus. dated 1.3.94 provided to Kerosene is available to Aviation Turbine Fuel (ATF) imported by them.\n<\/p>\n
2. Shri Manoj Arora, learned Advocate, submitted that the Revenue has demanded Customs duty on ATF which had remained in the fuel tank of the air craft on arrival at Calicut from foreign destinations; that under Notification No. 19\/94-Cus, Customs duty is exempted in respect of Kerosene falling under Heading 27.10 of the First Schedule to the Customs Tariff Act; that according to Explanation I to the Notification Kerosene means any hydrocarbon oil (excluding mineral colza oil and white spirit) which has a smoke point of eighteen millimetres or more and is ordinarily used as an illuminant in oil burning lamps.”; that ATF is nothing but superior Kerosene which satisfies the definition of the Kerosene given in Explanation I to the Notification; that according to Encyclopaedia Britanica, Kerosene is “a term applied to that portion of petroleum or other mineral oils boiling between the approximate limits of 180\u00b0Cand320\u00b0C. (350bFand608\u00b0F). It is used as jet engine fuel, in domestic heating, as an illuminant, as a cleaning solvent and in insecticides.” The learned Advocate contended that it is thus apparent that Kerosene can be used for many purposes and one of the uses is as jet engine fuel; that as the impugned product satisfies all the technical specifications provided in the Notification, the benefit of the Notification cannot be denied to the ATF. He relied upon the Board’s letter dated 5.9.1967 wherein it was mentioned that Aviation Turbine Fuel was classifiable as superior Kerosene. He, further, mentioned that IS 1571 :1992 is in respect of “Aviation Turbine Fuels, Kerosene Type-Specification” which goes to show that ATF is nothing but Kerosene. The learned Advocate also mentioned that Explanation I to the Notification provides that Kerosene is ordinarily used as an illuminant in oil burning lamps; that it does not exclude if Kerosene is used as jet engine fuel; that word “Ordinarily” has been interpreted by the Apex Court in the case of Kailash Chandra v. Union of India,<\/a> 1962 SCR 374. According to the Supreme Court, “Ordinarily” means “in the large majority of cases but not invariably”; that it is thus clear that ATF which is used as fuel in aircraft will be eligible for the benefit of the Notification as it satisfies the specifications mentioned in Explanation I to Notification. He relied upon the decision of the Larger Bench in the case of CCE Bombay v. Reliance Industries Ltd.  wherein it has been held that Heavy Normal Paraffin (HNP) is classifiable under sub-Heading 2710.29 of the Schedule to the Central Excise Tariff Act holding that as per definition of Kerosene and ATF, these should take in any hydro carbon oils other than mineral colza and turpentine substitute which satisfy the physical properties mentioned therein and definition of Kerosene and ATF in Chapter 27 takes within its ambit any hydrocarbon oil other than mineral colza oil and turpentine substitute which has a smoke point of 18 mm or more and has a boiling point not exceeding 300\u00b0C. The learned Advocate thus contended that as in Explanation I to Notification No. 19\/94-Cus. only mineral colza oil and white spirit are excluded ATF is covered by the term “Kerosene” as it conforms to the specifications mentioned therein. He also relied upon the decision in the case of CCE v. IPCL Ltd.  wherein it was held as under:\n<\/p>\n
 There is, however, an internal clue to the scope of the entry. It is in the explicit exclusion of mineral colza oil and turpentine substitute which but for the exclusion would have fallen within the entry. It leads to the inference that, barring these two specifically excluded products, every mineral oil conforming to the definition of Kerosene and ATF would be covered by Item No. 7. That this is the intention of the Legislature is also borne out by the structure of the sub-items, the first one being ATF and the second being “others”. If only kerosene was intended to be covered, there was no need for the entry “others” in plural. It should have simply read “Kerosene”. In which event, a given product to fall under the entry “Kerosene” must not only conform to the definitional specifications if the entry but also must be known and understood in commercial parlance as kerosene which is ordinarily used as illuminant. The use of the word “others” give rise to the distinct inference that the word was meant to cover not only kerosene as commonly understood but also any other mineral oil, other than ATF and, of course, mineral colza oil and turpentine substitute, conforming to the definitional specifications.\n<\/p>\n
2.2 He also mentioned that the Tribunal in IPCL case also observed that “it is a matter of common knowledge, that Kerosene is used not only for illumination but also for heating and cooking, as solvent etc. Use for illumination is thus one of its uses. “It would therefore be reasonable to presume that the words in parenthesis after ‘Kerosene’ are only meant to identify the product and not to define its scope and coverage.” He mentioned that the Tribunal went on to hold that “so long as an oil conforms to the definition of “mineral oil” in Explanation I to Item 7 read with Explanation I to Item 6, C.E.T., and to the smoke point and final boiling point criteria laid down in item 7, it would fall for classification under Item 7.\n<\/p>\n
2.3 Finally, the learned Advocate referred to Board’s Circular No. 562\/58\/2000-CX dated 8.12.2000 wherein it was clarified that the words “ordinarily used” presupposes the variety of uses and contended that use of ATF as aviation turbine fuel would not make it disentitle from the benefit of Notification.\n<\/p>\n
3. Countering the arguments Shri R.C. Sankhla, learned Departmental Representative submitted that in common parlance ATF is not Kerosene; that ATF is not referred to as Kerosene but as ATF alone; that ATF is not used ordinarily as illuminant in oil burning lamps; that since the wording used in Explanation to Notification are specific and clear, no support can be taken from the Encyclopadia Britanica which defines Kerosene in general terms. He further, submitted that in earlier Notification No. 35\/90 dated 20.3.90, Kerosene and ATF wee mentioned separately which goes to prove that Kerosene and ATF are not the same product; that in subsequent Notification No. 19\/94 Kerosene has only been retained as exempted product and all other goods falling under Heading 27.10 of the Tariff attracts the concessional rate of Customs duty. Learned Departmental Representative also mentioned that in Kailash v. UOI (supra), the Supreme Court was interpreting Railway Establishment Code and Fundamental Rules which are administrative matters; that interpretation of a Taxing Institute and Administrative Rules is totally different; that it has been held by the Supreme Court in the case of Shri Baidyanath Ayurved Bhawan Ltd. v. CCE, Nagpur  that “in interpreting statutes like Excise Act, the primary object of which is to raise revenue and for which purpose various products are differently classified, resort should not be had to the scientific and technical meaning of the term and expressions used but to their popular meaning, that is to say, the meaning attached to them by those who are using the product.” Learned Departmental Representative thus contended that ATF which is subject matter of the present Appeal is not used for illuminant in burning lamps in the common parlance; that even in the case of IPCL Ltd. (supra), the Tribunal has treated Kerosene and Aviation Tribunal Fuel as two different products inasmuch as the ATF was shown separately in S. No. (1) of Tariff Item 7 of the old Central Excise Tariff and “others” was mentioned in sub-item (2) of Tariff Item 7 at the relevant time; that the Tribunal interpreted the word “others” in IPCL decision for classifying the product heavy normal praraffins under Heading 27.10 by holding that the word ‘others’ is used and not ‘Kerosene’ which would have been the term employed if the intention was to restrict the total coverage of item 7 to ATF and Kerosene and the coverage of sub-item (2) to Kerosene; that similarly, in Reliance industries case, the Larger Bench of the Tribunal was concerned with the classification of heavy normal paraffin and interpreted the phrase “that is to say” which was used while defining both Kerosene and Aviation Turbine Fuel. Finally, the learned Departmental Representative mentioned that the Board’s Circular dated 8.12.2000 was issued in completely different context as it was related to the applicability of Exemption Notification No. 5\/98-CE dated 2.6.98 to Kerosene oil distributed through the Public Distribution System; that in that context, the Board clarified that the exemption was conditional on the technical specifications mentioned in the Notification as well as on the fact that Kerosene oil is ordinarily used as an illuminant in oil burning lamps; that the Board’s clarified that words “ordinarily used” pre-supposes a variety of uses and most common use is specified and if a consumer also uses the Kerosene oil, which is used for illumination of oil burning lamps, for any other purpose. The exemption will continue to be applicable. Learned Departmental Representative emphasized that the Board in this clarification has stressed again that Kerosene oil should be useable for illumination of oil lamps and if it is used by the consumer for any other purpose, the benefit of Notification will not be denied and there is nothing on record brought by the Appellants that the ATF is ordinarily used as Kerosene for illumination in oil burning pumps as illuminant.\n<\/p>\n
4. We have considered the submissions of both the sides. Notification No. 19\/94-Cus. dated 1.3.94 provides nil rate of duty in respect of Kerosene falling under Heading 27.10. of the First Schedule to the Customs Tariff Act. Explanation I provides that Kerosene means any Hydro carbon oil (excluding mineral colza oil and white spirit) which has a smoke point of 18 mm or more and is ordinarily used as an illuminant in oil burning lamps. For the purpose of availing the benefit of Notification, it has to be satisfied that the product is (1) Hydro carbon oil, (2) having a smoke point of 18 mm or more; and (3) is ordinarily used as an illuminant is oil burning lamps. The Appellants have only mentioned that the ATF in question confirms to the technical specifications mentioned in Explanation I, that is, it is a Hydro carbon oil and has a smoke point of 18 mm or more. No evidence or material has been brought on record by them to show that ATF is used as an illuminant in oil burning lamps”. The mere fact that both Kerosene and ATF fall under the same Tariff Item in the old Central Excise Tariff as well as in the same Heading 27.10 in the present Central Excise as well as Customs Tariff does not mean that whatever exemption is applicable to Kerosene will automatically apply to ATF also. The Appellants have to prove that their product within the four corners of exemption Notification. It is well settled law by the Supreme Court that exemption notification is to be construed strictly and benefit in case of ambiguity must go to State. This was the view expressed by the Supreme Court in the case of Novopan India v. CCE, Hyderabad<\/a> 1994 (4) RLT 323 (SC) and Liberty Oil Mills Ltd. . The Board’s letter dated 5.6.97 does not advance the case of the appellants as it merely mentions that Aviation Turbine Fuel oil is classifiable as superior Kerosene. The issue dealt with in the said letter was availability of inbond movement of ATF to the flights bound for foreign ports but touching enroute some intermediate Indian air ports. The classification of ATF under the Tariff Item 7 of the old Central Excise Tariff was never in dispute as Tariff Item 7 covered Kerosene (which is ordinarily used as an illuminant in oil burning lamps) and Aviation Turbine Fuel. After introduction of new Central Excise Tariff in 1986, Heading 27.10 applies to Kerosene (which is ordinarily used as a illuminant in oil burning lamps) and Aviation Turbine Fuel, that is to say a Hydro carbon oil (excluding mineral colza turpentine substitute) which has a smoke point of 18 mm or more and has final burning point not exceeding 300\u00b0C. In both the cases of IPCL and Reliance Industries Ltd., the issue involved was classification of heavy normal paraffins which was classifiable under old Tariff Item 7 or sub-Heading 2710.99 on account of technical specification. In the present matter before us, the issue involved is availability of exemption under Notification No. 14\/94-Cus. which only exempts Kerosene which is ordinarily used as an illuminant in oil burning lamps. The ratio of both these decisions is not applicable to the present matter. Learned Departmental Representative has rightly pointed out that in both the decisions ATF and Kerosene have been separately mentioned and not as one product. We also agree with the submissions of learned Departmental Representative that Board’s Circular No. 562\/85\/2000 CX dated 8.12.2000 does not clarify wherever Kerosene is mentioned it will cover ATF also. Notification No. 5\/98(S. No. 27) provided concessional rate of duty in respect of Kerosene which is ordinarily used as an illuminant in oil burning lamps. Doubts were raised whether the Kerosene oil distributed from the PDS should be considered as satisfying the said condition as there is no mechanism to ensure actual use of Kerosene cleared for Public Distribution System. In context of these doubts, it was clarified by the Board that if the consumer also use Kerosene oil for any other purposes, the exemption will continue to be applicable as the Kerosene oil in question is ordinarily used for illumination of oil lamps. As observed by us earlier, there is nothing on record to show that the ATF in question is ordinarily used as illuminant in oil burning lamps. Accordingly, we find no reason to interfere with the impugned Order. We, therefore, reject the Appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Indian Airlines Ltd. vs Commissioner Of Customs on 24 July, 2002 Equivalent citations: 2002 (83) ECC 345, 2002 (150) ELT 496 Tri Del Bench: S Kang, A T V.K. ORDER V.K. Agrawal, Member (T) 1. The issue involved in this Appeal, filed by M\/s. Indian Airlines Ltd., is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-30072","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nIndian Airlines Ltd. vs Commissioner Of Customs on 24 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-airlines-ltd-vs-commissioner-of-customs-on-24-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Airlines Ltd. vs Commissioner Of Customs on 24 July, 2002 - 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