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TMI Blog2013 (11) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... f the importers. The redemption fine and penalty with respect to waste and scrap of tyres, ordered to be re-exported, is deemed to be included in the redemption fine and penalties already imposed as no separate quantity and value of the waste and scrap of tyres, classifiable under 40040000, is available on record. there is no evidence with the Revenue that extra amounts have been remitted by the appellants for the current imports to the supplier of the goods. Appellants have also given correct description of the imported goods that old and used tyres are not fit for use for fast moving vehicles or heavy duty vehicles. In spite of that if some of the users in India make use of those tyres for fast moving vehicles or heavy duty vehicles, then appellants cannot be faulted with. It is not a fit case for holding that there was a mis-declaration of value or description of goods and accordingly provisions of Sec 111(m) of the Customs Act 1962 cannot be invoked - Decided in favour of assessee. - Appeal No. : C/10333 to 10338 of 2013 - Final Order Nos. A/11340-11345/2013-WZB/AHD - Dated:- 22-10-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri P.M. Dave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion, are scrap tyres. All these tyres, as per their marking were originally designed for passenger car, light heavy duty commercial vehicles. It is emphasized that these tyres are not designed for Animal Driven Vehicles (ADV) and hence, these tyres cannot be declared as not fit for fast moving and heavy loaded vehicles. Since many highway road accidents in India were attributed to tyre failures the import of 2/3 wheelers, passenger cars, truck and bus tyres, without ISI marking as per the Quality Control order 2009 issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, is not allowed. 2.1 Transaction value of the imported tyres was also not accepted by the Revenue and valuation based on deductive method prescribed under Rule 7 of the Customs Valuation Rules, 2007 was adopted and for that purpose goods were got examined from Shri Rakesh C. Singh, a Government approved Surveyor/ Valuer from Andheri (E), Mumbai, who arrived at the market value of the goods, bill of entry wise. Cross examination of both Shri Rakesh C. Singh and Shri Sachin Barve was done by the appellants during the adjudication proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.12.2012 written by Director of Ministry of Commerce and Industry, Department of Industrial Policy and Procedure, Govt. of India, addressed to CBEC, New Delhi. (iv) That old and used tyres classified under 40122010 and 40122020 cannot be considered as waste and scraps as the same are capable of being used as such or upon their retreading as held by the adjudicating authority. (v) That as per letter dated 12.01.2012 written by Commissioner, ICD Tughlakabad to Chief Commissioner Customs), the practice is to allow clearance to old and used imported tyres capable of being used on suitably loading assessable value and on payment of redemption fine. (vi) That as per the customs Website also such tyres are being allowed clearance without insisting for BIS standards from all major ports. (vii) That old and used tyres are not fit for fast moving cars, even though some buyers in India may use such tyres, but actually these tyres are required to be used for Animal Driven Vehicles (ADV) like camel carts, Bullock carts, Tractor Trolleys. Therefore, it was argued that even if these tyres are not originally designed for ADVs, due to wear and tear and prolonged use on fast moving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported tyres for Bill of Entry No. 48 dated 15.3.2012 got done by them from Shri Rajesh J. Patel and Mauseen S. Pathan (Surveyor/ Assessor and Valuer) from Ahmedabad, the market value of the consignment will be Rs. 10,32,005/- and not Rs. 41,15,635/- as got done by the Revenue. (xii) Appellants relied upon the following case laws in support of their contentions:- (a) Shree Ganesh International vs. CCE Jaipur [2004 (174) ELT 171 (Tri. Del.)] (b) Gauri Enterprises vs. CC, Pune [2002 (145) ELT 706 (Tri. Bang.)] (c) Vaibhav Textiles vs. Commissioner Central Excise Customs, Kolkatta [2007 (214) ELT 408 (Tri. Kolkatta)] (d) Kirti Sales Corpn. Vs. CC, Faridabad [2008 (232) ELT 151 (Tri. Del.)] (e) Impact Systems Inc. vs. CC, Tuticorin, [2008 (228) ELT 604 (Tri. Chennai)] (f) Care International vs. CC, Madras [1994 (69) ELT 74 (Tri.)] (xiii) That in view of the orders dated 26.10.2012 and 04.05.2012, issued from F.No. V(30) ICD Loni/ Adj/Millennium/1064/2012 and F.No. VIII (ICD) 10/TKD/6AG/474/2012 passed respectively by Additional Commissioner, Ghaziabad and Additional Commissioner, Tughlakabad, such consignments of old and used tyres were being cleared after impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 ? (ii) Whether the impugned tyres are required to be manufactured as per BIS standard and shall bear BIS mark? (iii) Whether the impugned tyres fall under restricted categories as prescribed under pneumatic under Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009 and require import license for import thereof? (iv) Whether the scrap tyres (ie., unusable tyres bearing cuts etc.) can be considered as hazardous waste under the provisions of Hazardous Wastes (Management, Handling and Trans-boundary Movement) Rules 2008 and if so, whether the same are restricted for import? (v) Whether the value of the impugned tyres is required to be re-determined as proposed in show cause notice ? (vi) Whether proposal for consequential action against the notices are correctly, made in the show cause notice or otherwise. 5.1 So far as the classification of the imported old and used tyres is concerned, it was held by the adjudicating authority that old and used tyres, with residual life when used as such or after retreading, were classifiable under CTH 40122010 and CTH 40122020 and remaining tyres were classifiable as waste/ scrap tyres of CTH 40040000 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of these observations impugned goods the same cannot be considered as absolutely prohibited under the Import Policy. Documentary evidences have been furnished by the appellants which clearly bring out that such old and used tyres are being imported and cleared on payment of appropriate duty, redemption fine and penalty as other major ICDs and Ports in India. The classification of imported goods made by the adjudicating authority under CTH 40122010 or 40122020 itself shows that majority of the imported tyres are capable of being used and therefore, can not be considered as waste and scrap and accordingly have to be considered as restricted goods as per Import Policy and not as absolutely prohibited goods. Appellants have also furnished a copy of letter No. 10(3)2013-LR dated 30.01.2013 from Department of Industrial Policy and Promotions (LR Section), obtained under RTI to the effect that provisions of Quality (Control) Order 2009 are applicable to only new tyres and not used tyres. 5.3 So far as the issue raised at Para 53 (iv) of the OIO dated 10.01.2003 is concerned, it is observed from the case records that Shri Sachin Barve, Tyre Engineer of IRMRA under his report dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hazardous Waste. However, a view cannot be taken that those tyres capable of being reuse as such or after retreading will again become waste/ scrap tyres within a short time because the same can also be said about the brand new tyres with BIS specifications, whether imported or manufactured in India. 5.4 In Para 53 (iii) of the OIO dated 10.1.2013, the Adjudicating authority had raised the issue whether imported tyres fall under restricted category as per Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) order 2009 and require import license. It was held by the adjudicating authority that old and used imported tyres are not allowed to be imported for direct use. It may be true that a commodity imported by appellants could be prohibited under any law for the time being in force but that does not make the imported goods absolutely prohibited under the import policy. As per the import policy import of old and used tyres or re-treading tyres is only restricted commodity. The Quality Control order of 2009 for Pneumatic Tyres and Tubes has been issued under Sec. 14 of the Bureau of Indian Standard Act 1986. If any provision of this Act and/or Quality Control order 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life left but these tyres are not fit for fast moving vehicles and heavy loaded vehicles. However, it is not coming out of this entire report as to what market survey was done by the Govt. approved valuer or what data was used to assess the value arrived at. It is also not clear from the report as to which market data he used whether it was for Mumbai, Ahmedabad or Delhi or Kolkatta tyre market. In the cross examination of Shri Rakesh C Singh as reflected in Para 41 (i) of the adjudication order No KDL/Commr/49/2012-12 dt. 10.1.2013 the place of market taken for valuation enquiry was disclosed at Mumbai but it is evident from cross examination that valuation was done by Shri Rakesh C Singh only on the basis of oral inquiries and on the basis of his personal knowledge and not on the basis of any documentary evidence of prices prevailing in Mumbai. No resourcing has been given by the Adjudicating authority to address the discrepancies brought out by the appellants in the cross examination of the witnesses before deciding the valuation under Rule 7 of the Customs Valuation Rules 2007. Firstly, Rule 7 is subject to the provisions of Rule 3 and no evidence has been brought on record by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be faulted with. It is not a fit case for holding that there was a mis-declaration of value or description of goods and accordingly provisions of Sec 111(m) of the Customs Act 1962 cannot be invoked. 5.6 Appellants have relied upon the judgments of Shree Ganesh International vs. CCE Jaipur (Supra), Vaibhav Textiles vs Commr of Central Excise Customs, Kolkatta (Supra) and Kiriti Sales Corpn. Vs. Commissioner of Customs, Faridabad (Supra) holding that declaration made in the Bills of Entry based on the documents received by the importers cannot be held to be a case of mis-declaration under Sec 111 of the Customs Act 1962. Similarly, it was held by CESTAT in case of Gauri enterprises vs. Commissioner of Customs, Pune (Supra) and Care International vs. Commissioner of Customs (Madras) (Supra) that confiscation is not proper when similar goods were earlier released on redemption fine. However, confiscation Under Sec. 111 (d) of the Customs Act, 1962 is justified for the reason that old and used tyres are restricted items under the Import Policy for which a valid import license was required and accordingly penalties are also imposable upon the appellants under Sec 112 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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