2012 (4) TMI 414 - AT - Customs

Import of old, used and discarded rubber tyres Department enhanced value of tyres, imposition of redemption fine in lieu of confiscation and penalty as the tyres imported were in sound condition, hence usable after working, proceedings initiated - Tribunal called for revision of classification as only a small quantity of 3,142 tyres was found to be in good condition and not on entire consignment Held that - Since a small quantity of less than 10% has been found to be usable, it cannot be said that the appellants have intentionally mis-declared the classification - what has been purchased apparently is a stocklot and in such purchase, some good quality tyres would always be found - redemption fine in lieu of confiscation on the ground of mis-declaration of classification also cannot be upheld and no penalty under Customs Act - remand the matter to the original adjudicating authority who shall decide the duty payable on 3142 tyres - once it has been held that the value arrived at on the basis of opinion of the re-traders, cannot be accepted and the valuation has not been done in accordance with the valuation rules, the Department cannot proceed to revise the value - Commissioner is directed to re-consider the issue

Issues:
1. Classification of imported rubber tyres under CSH No.40122020.
2. Enhancement of value of imported tyres by the Commissioner.
3. Imposition of redemption fine and penalty on the appellant.
4. Compliance with EXIM Policy provisions.
5. Correct determination of duty liability on usable tyres.
6. Adherence to the remand order by the Commissioner.

Classification of imported rubber tyres under CSH No.40122020:
The Tribunal found that out of the total quantity of 33,643 imported tyres, 3,142 were in good condition and classifiable as used tyres under CSH No.40122020. The remaining tyres were deemed not usable directly and could not be classified as claimed by the Department. The Tribunal emphasized the importance of re-treaders' expertise in determining the usability of tyres, stating that their opinion on usability should not be rejected. Each tyre was inspected, and classification was upheld for the 3,142 usable tyres, while the remaining ones could not be classified under the claimed heading.

Enhancement of value of imported tyres by the Commissioner:
The Tribunal disagreed with the Commissioner's decision to enhance the value of the tyres based on re-treaders' opinions, as it went against the Customs Act procedures. The Tribunal noted that the transaction value should not have been rejected solely on expert opinions regarding direct usability. It was emphasized that less than 10% of the tyres were found usable, making the enhancement of value unjustified. The Tribunal held that the penalty imposed on the appellant for mis-declaration could not be upheld, considering the nature of the purchase as a stocklot where some good quality tyres were expected.

Imposition of redemption fine and penalty on the appellant:
The Tribunal set aside the redemption fine imposed in lieu of confiscation and the penalty under the Customs Act, except for the 3,142 tyres violating EXIM Policy provisions. A nominal penalty and fine were suggested for the violation, emphasizing that the mis-declaration finding could not be upheld due to the nature of the stocklot purchase.

Compliance with EXIM Policy provisions:
Regarding compliance with EXIM Policy provisions, the Tribunal directed a re-assessment of the duty payable on the 3,142 usable tyres and verification of the correct number of usable tyres by the Commissioner. The Tribunal highlighted the need for adherence to foreign trade policy provisions in determining the duty liability on the usable tyres.

Correct determination of duty liability on usable tyres:
The Tribunal emphasized the importance of correctly determining the duty liability on the 3,142 usable tyres in accordance with foreign trade policy provisions. The Commissioner was instructed to verify the exact number of usable tyres and decide the duty payable on them.

Adherence to the remand order by the Commissioner:
The Tribunal found that the Commissioner had not followed the remand order's direction, particularly regarding the enhancement of value and imposition of fines and penalties. The Tribunal allowed the appeal by way of remand, setting aside the impugned order and directing the Commissioner to re-consider the issue in line with the Tribunal's directions and observations.

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