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TMI Blog2017 (2) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... - there is no requirement of any import license for their import. The Customs (Revenue), therefore, cannot have Import Policy Objection for their clearance for home consumption. Valuation - rejection of transaction value - the goods have been purchased aboard, mainly as scrap - Held that: - where these goods are usable as such, there is clear-cut contravention of Import Policy issued by DGFT, Ministry of Commerce, Government Of India, but where the goods are non usable as such and finding classification in the category of Other under CTH No. 40122090, they do not contravene the Import Policy and are allowed import freely. However, both categories of these goods have been imported in all respective consignments, so these factors are to be given due weightage when the valuation is to be decided by the original adjudicating authority, as the matter deserves to be remanded to the original adjudicating authority for this purpose - matter on remand. Imposition of penalty - Held that: - the adjudicating authority has to keep the objective in mind that quantum of penalties and fines are imposed to such an extent so that in future such imports are strictly and seriously discouraged - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residual life is substantially less than normal life of the tyre. (vi) Because of wear and tear some of the tyres had cuts: that in view of these conditions of tyres, they cannot bear the load of commercial and passenger vehicles, and hence not capable of use for commercial/passenger vehicle; that these tyres, after import, though initially not manufactured for ADV are normally used for hand cart, bullock cart, camel cart, tractor trolly, buffer support in the country craft vessels etc., by poorer sections of society. (vii) These tyres were not capable for use on commercial/passenger motor vehicles or commercial vehicles; that they are therefore appropriately classifiable under the Customs Tariff Heading No. 40122090 and they were eligible for import without an import licence. (viii) These imported tyres are discarded tyres and have lost their direct utility for the vehicles for which they were initially manufactured; the appellants have purchased these from the dumping yard. (ix) As tyres were not capable for use on heavy vehicles like bus, truck or LCV or on passenger vehicles like car, jeep etc., these tyres were not classifiable under the Chapter 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles with substantial residual life ranging from 10% to 35%. (ii) The need of retreading or repair does not change the basic nature of subject tyres and in spite of such need these remain tyres of buses, trucks and jeeps only. The tyres also perfectly fit in the description of CTH no. 40122010 and 40122020. (iii) The importers are coming up merely with a contention/view that these tyres are capable of being used only in Animal Driven Vehicles (ADVs) without any evidence as such. The classification is a matter of fact and fact is that such tyres are mainly capable of being used as Bus/Lorry L.C.V. tyres, at the time of import at Mundra. The issue of classification cannot be decided merely on the proclaimed intention of the importer to use them on ADVs. (iv) The burden of proof that subject tyres are going to be actually used only on Tractors, Trolleys and ADVs, shifts on to the importer. 4.1. In respect of valuation, the Ld. AR interalia further submits as under:- (i) Considering the following decisions:- a) Collector of Customs vs. Sanjay Chandi Ram 1995 (77) ELT 241 (S.C.), (b) Varsha Plastics Pvt. Ltd vs. Union of India 2009 (235) ELT 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd their release for home consumption necessary import licence is required. The Customs (Revenue) is, therefore, required to take necessary action as per law before releasing the said tyres for home consumption. 7.1. The main dispute is on classification of the remaining tyres , which do not fit in the description given in Customs Tariff Heading Nos. 40122010 and 40122020. The Revenue contends that as the remaining goods (old and used tyres) would require repairs/retreading and may finally be used for Buses, Lorries and Auto Vehicles, the same are also to be classified under the same CTH Nos. i.e. 40122010 and 40122020, he where the import goods namely old and used tyres, which could be used as such i.e. immediately without any further repairs and retreading are finding the classification i.e. under the CTH Nos. 40122010 and 40122020. The rival classifications and Import Policy implications have been reflected by the Revenue in the table given below:- Sr. No. CTSH NO. Description Policy Policy condition 1 40122010 Used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t surveyor/valuer and the appellants had not objected to such valuation at the time of clearance of the goods. 8.1. Revenue states that once the classification has been found misdeclared, value is necessarily to be questioned and rejected; and when they have not found identical or similar goods to decide on the valuation, the Revenue decided the valuation by residual method under Rule 8 of CVR, 1988. The argument against the Revenue is that Revenue does not have sufficient corroborating evidence to support their stand on valuation of these import goods. However, Revenue also argues that such tyres are sold as such or after repairs/retreading and are sold in the market on sufficiently high prices. The Revenue based on the contemporaneous NIDB data , for old and used tyres and based on expert assessment arrived at wide range of average price(s) per tyre for these different appeal consignments. However, NIDB data and expert assessment evidence(s) may also require further corroboratory proof in the form of market/sale inquiry data for their legal sustenance. Therefore, we direct that said question of valuation needs decision afresh by the original adjudicating authority, who shall c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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