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TMI Blog2024 (7) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... mining and other off-road purposes whereas it is apprehended by the department that the tyres are being misused as truck and bus tyres. It is found that the impugned goods are not subjected to any tests/analysis by any authority having technical competence. The apprehension of the department is on the basis of a statement, of Shri Pannalal Choudhary, who looks after maintenance of trucks belonging to M/s Vikas Road Carriers Ltd, stating that these tyres are being used for trucks and buses. It is found that no corelation has been made to identify the tyres imported by the appellants and the subsequent mis-use, if any, thereof. It is settled principle of law that the classification of the goods is to be made with reference to the technical pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) AND MR P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms Nisha Bineesh, Advocate with Ms Rishika Suman, Advocate for the appellants Shri Deepak Sharma, Assistant Commissioner (AR) for the respondent ORDER All the appellants herein, have imported tyres falling under CETH 4011 8000 and have accordingly filed bills of entry. On the basis of an intelligence received/collected, officers of the Directorate of Revenue Intelligence have intercepted the consignments and seized the consignments under the reasonable belief that the impugned tyres are in fact tyres used for truck and bus and fall under CETH 4011 2010 and hence require clearance from the competent authority and should adhere to the BIS specifications required therein. The appellant have requeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authority has rejected the request and the grounds taken by the first appellate authority are different and both of them are figments of imagination rather than being factual and legal. 3. Learned Counsel for the appellants further submits that similar investigations have been undertaken by the department in the past; CESTAT vide final order 20853/2021 dated 28/12/2021 have decided the issue in favour of the appellants. The department has cleared the imports after obtaining evaluation report from Indian Rubber Manufacturers Research Association (IRMRA) which was categorical in saying that the impugned tyres were for use on mining vehicles only. Learned Counsel would also submit that the customs authorities are giving unequal treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into consideration. He also relies on Malabar Diamond Gallery Pvt Ltd v. Additional Director General, Directorate of Revenue Intelligence, Chennai [2016 (341) ELT 65 (Mad)]. 5. Heard both sides and perused the records of the case. The dispute in the instant case is regarding the use of the tyres imported by the appellants and as to whether this imported tyres can be released provisionally to the appellants pending investigation. It is the case of the appellants that the tyres are of a kind used in mining and other off-road purposes whereas it is apprehended by the department that the tyres are being misused as truck and bus tyres. We find that the impugned goods are not subjected to any tests/analysis by any authority having technical c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action has not been taken in respect of the impugned goods even though more than 3 to 4 months have elapsed. In case of such suspicion, the immediate action that was required to be taken by the department was to get the goods evaluated/tested by a competent authority. The same having not being done, the goods cannot be held to be classifiable under CETH 4011 2010 and this cannot be a reason to deny provisional release to the appellants. Learned Authorized Representative for the department argues that it is the discretion of the adjudicating authority whether or not to release the goods provisionally. While we are in agreement with the argument of the Learned Authorized Representative, we are of the considered opinion that there is a fine di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which could be restrictive, and which could be deemed to be prohibited by virtue of the deeming provision under section 2 of Customs Act, 1962. As of now, what is manifestly evident is the apprehension of the department that the impugned tyres are mis-declared and are likely to be mis-used. As observed by us above, usage after import cannot be a criteria for classification. We find force in the argument of the appellants that in case of any such misuse the competent authority, i.e. the road transport authority can take necessary action in public interest. We are of the considered opinion that the customs cannot assume the cause of such authority. In view of the discussion, we find that the department has made no case for rejection of prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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