TaxTMI 
TaxTMI 
2009 (11) TMI 324
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....1. F-07, dated 6-2-02 Safina Al Shahidi BDI-586 65 MT/4544 Nos. 5850.00 2. F-l0, dated 18-2-02 Hira Moti PBR-425 80 MT/5482 Nos. 7200.00 3. F-11, dated 18-2-02 Al Gause-Pirane Pir BDI-129 140 MT/14482 Nos. 12600.00 4. F-12, dated 18-2-02 Safina Al Salimi No.733 82 MT/11135 Nos. 7380.00 2. Proceedings were initiated and on examination of the goods, the tyres were found to be in good condition and could be used as such in different types of motor vehicles in India, contrary 'to the declaration made by the importer declaring the tyres as "old and used, discarded rubber tyres for ADV tractor trolley." Department also took a stand that the value was found to be too low. Thereafter, t....
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....nt that the actual use of the tyres could decide the classification as held by the Larger Bench of the Tribunal in the case of CEAT Tyres of India - 2002 (140) E.L.T. 273 (Tri.-LB) = 2002 (48) RLT 499 (CEGAT-LB). Ld. Advocate also relied upon several decisions of the Tribunal in addition to the decision in CEAT Tyres of India Ltd. case, in support of his contention that the tyres imported by the appellant could not be used in motor vehicles and classification claimed was correct. 4. Learned JDR, on the other hand, submitted that the classification made by the Commissioner is appropriate and he relied upon the BIS specifications for this purpose. 5.1 As rightly submitted by the learned Advocate the figure of 33,186 tyres being suitable....
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....hich can be used directly according to the Panchnama are 3142. As regards classification, the main heading is 40121020 which covers used pneumatic tyres. 40121090 covers others. In EXIM policy, import of used tyres for bus lorries, light commercial vehicles, passenger motor vehicles including two wheelers, three wheelers and personal type vehicles, is restricted. Therefore, the question that was to be determined in this case is whether the tyres imported can be one which can be used for motor vehicles. The Tribunal decision cited by the learned Advocate supports his contention that unless the tyres imported can be directly used without any re-treading, the same cannot be classified under Chapter 401220. Therefore, Department cannot classify....
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.... These cases are also similar to the appeals allowed by us under Final Order Nos. 425 to 429/2002-A, dated 3-9-2002." In this case, in addition to the contention that witnesses were only re-treaders, it was found that their credibility itself was doubtful and hence it was rejected. In the case of M/s. Royal Tyre Company, 2006 (205) E.L.T. 321 (Tri.-Del.), the proprietor and the employee had stated that the imported tyres after re treading can be used for motor vehicles. In that case also, Revenue had relied upon the information of re-treaders. The Tribunal rejected it on the ground that in the earlier cases, such expert information was discarded. Tribunal had relied upon the decisions in the case of M/s. Namaskar Enterprise [2003 (158) E....
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....ir field and they would know the type of tyre which come to them for re-treading. Therefore, unless it is shown other wise, it has to be held that they would be competent to decide whether particular tyre can be used directly or not. It has to be noted that we are not relying on their expertise as regards value else since even though they may have an idea about secondhand tyre market, it cannot be said that they have the expertise. But as regards condition of the tyre and its usability, definitely re-treader would know whether the tyre is usable directly or not. Therefore, it will not be appropriate to reject the opinion of the re-treader as regards usability. As regards classification, once the tyres are held to be usable directly without ....
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....o case has been made out by department for enhancement of value. We are also conscious of the fact that less than 10% of the tyres have been found to be usable and on this ground also, enhancement of value cannot be upheld. 8. Since a small quantity of less than 10% has been found to he usable, it cannot be said that the appellants have intentionally misdeclared the classification. What has been purchased apparently is a stocklot and in such purchase, some good quality tyres would always be found. Therefore, finding of mis-declaration cannot be upheld. Therefore, penalty imposed on the appellant also cannot be upheld. 9. From the above discussion, it is quite clear that except 3142 tyres which we have found classifiable as used tyres ....