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TMI Blog2017 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... waste pneumatic tyres has been listed as a hazardous waste which can be imported only with the permission of MOEF. At the same time, the said entry excludes such waste pneumatic tyres which do not lead to resource recovery, recycling, reclamation or direct reuse - impugned goods will surely have to be considered as those capable of direct reuse, hence excluded from the purview of Entry B 3140 and consequently, falling in the category, which do not require permission of MOEF for importation - the imported tyres are used tyres, capable of direct reuse, accordingly they will fall in the categories excluded one 3140, they cannot be then treated as hazardous waste and hence their import will not require MOEF permission. Confiscability and imposition of penalty - Held that: - The goods being restricted and there being no specific licence for the import, the goods were rightly confiscated and penalty imposed in the impugned order - However, as we have found that imported goods cannot be treated as "hazardous waste", redemption fine under Section 125 of the Act but only for the purpose of re-export will not sustain. They can very well be permitted clearance for home consumption on impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that import of waste tyres should be carried out only after obtaining prior permission from the Ministry of Environment and Forest (MOEF), Government of India. 2. It further appeared to the department that the imported items being second hand tyres will be restricted for imports in terms of para 2.17 of the Trade Policy 2009-2014 and they can be imported only against valid licence issued by DGFT, which was not produced by the importer. 2.1 Department also took view that BIS certificate was required for the imported tyres, which had not been produced by the importer. 2.2. In adjudication proceedings, the original authority, vide order dt. 27.07.2011, inter alia, ordered confiscation of the imported goods valued at US$ 28,880 (Rs.13,05,376), however gave the importer an option to redeem the goods only for the purpose of reexport on payment of redemption fine of ₹ 3 lakhs under Section 125 of the Customs Act, 1962 read with Rule 17 of the Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. Penalty of ₹ 3,00,000/- was also imposed on the importer under Section 112 (a) ibid. 2.3. On appeal, Commissioner (Appeals) vide order dt. 23.08.2011 direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged or reviewed by the Department is 4012 2090 of the ITC (HS) classification of import items in the Indian Import Tariff Schedule I of the Foreign Trade Policy 2009-2014. ii) Lower Appellate Authority has misread the report of the District Environmental Engineer, Tamilnadu Pollution Control Board, Chennai District dated 25.07.2011. The report categorically states that the tyres are not new ones and only used ones and falls under Waste Pneumatic Tyres for direct reuse. Once that is so, the imported tyres do not fall within the ambit of Schedule-III of the Hazardous Waste (Management, Handling and Trans boundary) Rules 2008 and cannot come under the entry B-3140 of Schedule III. Part B to the said Rules. In that event, there is no restriction on the import of used tyres and no clearance or prior permission is required from the Ministry of Environment and Forests. iii) Lower Appellate Authority failed to note that the imported tyres can be reused directly or can be used after suitable re-conditioning by means of retreading. It is not the case of the Department that the imported tyres do not have any residual life. The Chartered Engineer who has examined the goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as such should be considered. 4. On the other hand, Shri B. Balamurugan, Ld. A.R for Revenue reiterates the impugned order. He arguments can be summarized as under : (i) Report dt. 26.07.2011 of TNPCB has stated that waste tyres are identified with No.B 3140 (Waste pneumatic tyres excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse] and that import of waste tyres should be carried out only after obtaining prior permission of Ministry of Environment Forests, Government of India. Hence as per the provisions of Hazardous Waste (Management and Transboundary) Rules, 2008 and Amendment 2010, the waste pneumatic tyres can be imported to the country only with the permission of MOEF. (ii) Contention of appellant that reliance should not be placed on certificate issued by TNPCB is misplaced since as per Schedule VII of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, Sl.No.4, State Pollution Control Board is one of the approved authorities under the Rules for implementation of these rules relating to hazardous waste. (iii) Appellants have not obtained requisite permission under the rules from M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular infraction, the importers are also be liable for penal action. 5.3. The authorities have held that the goods have been imported in violation of condition that tyres must have a BIS certification except for tyres imported by Original Equipment Manufacturer (OEM). We, however, find that this requirement is restricted only to newly manufactured tyres and are not applicable to used tyres. We also take note of the reply under RTI Act, 2005 given by the Ministry of Commerce Industry dt. 30.01.2013, submitted in page 123 of Vol-II of the appeal book, which reiterates this aspect, and also categorically certifies that provisions of Quality (Control) Order, 2009 for Pneumatic Tyres and Tubes for Automotive vehicles are not applicable to used tyres. The Tribunal in their decision in the case of Universal Trading Co. (supra), has also held likewise. The relevant portion of that order is reproduced below : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interpretation of the above schedule-3 (Part-B) and the conditionalities therein, there is no doubt that waste pneumatic tyres has been listed as a hazardous waste which can be imported only with the permission of MOEF. At the same time, the said entry excludes such waste pneumatic tyres which do not lead to resource recovery, recycling, reclamation or direct reuse. 5.5 There is no dispute in this case that the imported tyres are capable of direct reuse. Examination by Chartered Engineer appointed by the department has certified that present status of these tyres are not scrap items and waste. These facts have been recorded in para-2 of the de novo order of original authority dt. 30.03.2015. 5.6 Perusal of the inspection report dt. 28.07.2011 of the TNPCB also brings out that the said authority have repeatedly certified that the tyres are used ones and are capable of direct reuse. From perusal of the report in page 71 and 72 of the appeal book, in the third part of the report, the authority certifies that 12 , 13 , 15 , 16 tyres were not worn, but the tyres were found to be used ones . In the 5th para, it is even more clearly certified that thus the tyres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is inter alia stated that the said list is based on Annexure-IX of the Basel Convention of Transboundary Movement of Hazardous Wastes and comprises of Wastes not characterized as hazardous under Article I of the Basel Convention. 12. Entry B-3140 under the BASEL Convention reads thus : Waste pneumatic tyres, excluding those destined for Annex IVA operations. 13. Annexure IV bears the heading Disposal Operations . Section A thereof bears the heading Operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct reuse or alternative uses and encompasses all such disposal operations which occur in practice. The disposal operations, inter alia, include deposit into or onto land (e.g. landfill, etc.); land treatment (biodegradation of liquid or sludgy discards in soils, etc.); deep injection (e.g., injection of pumpable discards into wells, salt domes of naturally occurring repositories, etc.); surface impoundment (e.g. placement of liquid or sludge discards into pits, ponds or lagoons, etc.); specially engineered landfill (e.g., placement into lined discrete cells which are capped and isolated from one another and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry B-3140. Further as the CPCB could not carry out testing of impugned tyres, their opinion could not have been based on factual data in any case. Further, as has been recorded in the impugned order, the Delhi High Court perused the CPCB report and directed the adjudicating authority to pass order on the basis of facts available and after due consideration of the submissions of the importer on merit. The Delhi High Court did not say that the order should be passed on the basis of CPCB report. Thus while the CPCB report is not conclusive, even if the tyres are taken to be used tyres (they admittedly are), the adjudicating authority has not disputed that they are directly usable and hence as discussed earlier, they are excluded from the scope of the said entry B-3140. Further, the impugned goods do not figure in Part A of the said Schedule-III which contains list of items requiring MoEF's permission for import. Incidentally, it may be pertinent to state that the fact that the impugned goods are not covered under the said Part-B does not mean that their import requires prior permission of MoEF, more so because they are not covered under the said Part-A. Thus, the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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