Last week, the Customs came out with more details on alleged duty evasion by top industrialists in the country in the cases of aircrafts imports.
Apparently, most of them have paid up the duty, on demand. Some of them have approached the courts and may get away. But they may not find it that easy to dispel the impression that they did try to evade the duties.
Aeroplanes and helicopters are covered under the heading 88.02 under the Indian Trade Classification (Harmonised System of Nomenclature), known as ITC (HS).
The foreign trade policy restricts the items covered under 88.02 for imports but the import licensing note to the Chapter 88 of ITC (HS) says that aircraft and helicopters (including used/ second hand aircraft and helicopters) may be imported by specified airlines, airport authorities and training institutes without a licence.
Persons granted permission by the civil aviation ministry for operating scheduled or an-scheduled air transport services (including air taxi services) can also import aircrafts without a licence. Imports for personal use requires licence. Last year, the finance ministry issued notification 61/2007-cus. dated May 3, 2007 allowing duty free imports of aircrafts for providing non-scheduled (passenger) services or non-scheduled (charter) services by operators granted licence by the civil aviation ministry to do so.
The notification allowed imports by operators dedicated to provide the services. Imports for personal use attracted 25.32 per cent duty . The case made out by the Customs department is that some industrialists set up companies dedicated to providing non-scheduled passenger or charter services.
The companies obtained necessary licence from civil aviation ministry to run air-taxis and imported planes at zero duty without a licence. But the planes were rarely used to provide any air-taxi services to others. Mostly, the planes were used for personal purposes.
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In effect, they are personal imports of the industrialists and the companies are only dummies. Therefore, imports without licences warrant confiscation of aircrafts and penalty and the duty exemption must also be denied, says the Customs. The defence of some of the industrialists is that they are natural persons where as the companies, having Non-Scheduled Operators Permit (NSOP) are legal persons. They are distinctly different entities, in law.
As natural persons using the services provided by the NSOP, they have made payments for the services received to the NSOP.
Therefore, there is no violation of the conditions for import of the aircrafts or the Customs exemption notification, say the industrialists. No matter what course the litigations might take, it would be quite difficult to erase the impression that many industrialists set up companies (NSOP) to get approvals and avoid duties.
Some of the importing companies have paid up the customs duty or furnished a bond backed by bank guarantee and got released the planes that were seized by the Customs. However, the issues of penalties and legal remedies remain open. In the meantime, the Customs have held up release of aeroplanes imported by some other NSOP at the airports. Such importers are crying foul, as no valid grounds can exist to allege misuse of planes that have not yet crossed the Customs barriers and have not yet been delivered to the importers.