9911796707
TMI Blog2009 (11) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... ince our observations are based on the submissions made during the hearing. Accordingly, we remand the matter to the Commissioner to verify the correct number of usable tyres, determine the duty liability thereon and consider whether penalty is required to be imposed for violation of provisions of foreign trade policy. - C/1151/2005 - A/2359-2360/2009-WZB/AHD - Dated:- 12-11-2009 - S/Shri Ashok Jindal, Member (J) and B.S.V. Murthy, Member (T) Cross Objection No. C/CO/432/2005 Shri. P.M. Dave, Advocate, for the Appellant. Shri R.S. Srova, JDR, for the Respondent. [Order per: B.S.V. Murthy, Member (T)]. - The appellants imported old and used rubber tyres ("the goods" for short) at the port of Old Mundra as per following details: S. N. Bill of Entry No. and Date Vessel Name MSV Quantity (MT Nos.) CIF Value (USD) 1. F-07, dated 6-2-02 Safina Al Shahidi BDI-586 65 MT/4544 Nos. 5850.00 2. F-l0, dated 18-2-02 Hira Moti PBR-425 80 MT/5482 Nos. 7200.00 3. F-11, dated 18-2-02 Al Gause-Pirane Pir BDI-129 140 MT/14482 Nos. 12600.00 4. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant could not be used in motor vehicles and classification claimed was correct. 4. Learned JDR, on the other hand, submitted that the classification made by the Commissioner is appropriate and he relied upon the BIS specifications for this purpose. 5.1 As rightly submitted by the learned Advocate the figure of 33,186 tyres being suitable for passenger/commercial vehicles, does not seem to be emerging from any of the records of the case. From the panchnama drawn, it is noticed that in respect of each and every tyre, the size of the tyre was mentioned. The suitability of the tyre and type of the vehicle was also given. Thereafter, whether the same tyre could be used directly in motor vehicle for which it is meant or not was also indicated. Panchnama also clearly stated that: for classifying tyres in this manner, the officers relied upon the information given by two firms viz. M/s. Ajanta Tyre Works, M/s. Star Tyre Retreaders. At the time of drawing Panchnama, representative of M.U. Traders, importer was also present. One of the sample tables as per the Panchnama is reproduced below: S.No. Tyre Size Qty. (Nos.) Generally used in which vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trolley etc. The evidence is partly in support of this contention as part of the consignments were opined the witnesses also as for A.D.V. The appellants' contention that the findings in the impugned orders lack sufficient and credible evidence merits acceptance. The witnesses are engaged in retreading of tyres. 'They have no knowledge about the imported tyres. The credibility of purported evidence also is quite doubtful. One witness has disowned the statement. Another was not made available for cross-examination. In these circumstances, the impugned orders are required to be set aside as they lack sound basis in evidence. These cases are also similar to the appeals allowed by us under Final Order Nos. 425 to 429/2002-A, dated 3-9-2002." In this case, in addition to the contention that witnesses were only re-treaders, it was found that their credibility itself was doubtful and hence it was rejected. In the case of M/s. Royal Tyre Company , 2006 (205) E.L.T. 321 (Tri.-Del.), the proprietor and the employee had stated that the imported tyres after re treading can be used for motor vehicles. In that case also, Revenue had relied upon the information of re-treaders. The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are held to be usable directly without re-treading in particular type of motor vehicles, the classification has to be made under heading claimed by the Department. It has to be noted that in this case each and every tyre has been inspected and each and every tyre has been examined regarding its usability or otherwise. Therefore, we have to uphold the classification of 3142 tyres as claimed by the Department. As regards remaining tyres, admittedly they cannot be used directly and therefore they cannot be classified under heading claimed by the Department. 7. Next contention was regarding value enhancement of value by the Commissioner. We find ourselves in agreement with the contention of the learned Advocate that enhancement of the value without giving details of contemporaneous import from the same country and the same size etc. cannot be upheld. In this case, valuation and enhancement has been done on the basis of information given by the expert re-treaders. This is totally against the procedure contemplated under the Customs Act. The transaction value was rejected on the ground that experts gave their opinion that the vehicles can be used directly. This cannot be the basis fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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