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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 ..... 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 requested the adjudicating authority for provisional release of the goods pending investigation. The original authority vide order dated 30/05/2024 rejected the request of the appellants. On an appeal preferred by the appellants Learned Commissioner (Appeals) vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar 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 to the appellants with intent to harass the appellants vis-a-vis other importers. She submits that the imported tyres are for use in mining vehicles and they cannot be used in vehicles like trucks and buses which ply on highway as it would cause stress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 difference between 'discretion' and 'discrimination'. Allowing goods to be released to some importer as per the test report given by IRMRA, albeit in the past, and denying even a provisional release to some importers and not obtaining the opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisional release of the impugned goods. However, we are of the opinion that since the investigation is pending it will be in the interest of justice to accord provisional release subject to some conditions and restrictions. 8. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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