TaxTMI 
TaxTMI 
TaxTMI 
2013 (11) TMI 856
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....ts of the case are that appellants imported old and used tyres and filed bills of entry with the following description:- Old and used discarded tyres (Not fit for fast moving vehicles and heavy loaded vehicles to be used on Tractor Trolley, Horse cart, Camel cart, Buttock card and Hand cart.) On examination of the goods, the subject tyres were found to be in good condition and appeared to be classifiable under CTH 40122010 & 40122020, which got restricted under Import Policy circular No. 104/95 dated 28.9.2005, read with Para 2.17 of Foreign Trade Policy. The goods were inspected by one Shri Sachin Barve, Tyre Engineer of M/s. Indian Rubber Manufacturer Research Association, Ministry of Commerce and Industry, Govt. of India (IRMRA for short) who picked up ten sample tyres from each lot and gave the following report:- a) From the samples inspected, around 70%-75% samples found to be still in good condition, have residual life and can be sold in the market for regular application either as such or after re-treading the used tyre. a) Around 10%-15% tyres cannot be used as such no residual life but after re-treading could be sold in the market for the usage in the pass....
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....t of a specified redemption fine. Penalties were also imposed upon other appellants under Section 112(a) of the Customs Act, 1962 for importing the restricted goods at lower assessable value. 3. Shri P.M. Dave and Shri Paritosh Gupta (Advocates) appearing on behalf of the appellants during hearing and in their written submissions made the following arguments:- (i) Appellants are not contesting the classification of the imported tyres as decided by the adjudicating authority though they held a view at the time of import that the goods in the consignments imported by the appellants were classifiable under CTH 40122090. (ii) That similar goods are being cleared at ICDs Tughlakabad, Kolkata, Chennai and Delhi on payment of redemption fine as per the import date of all major ports downloaded from websites. They produced a copy of the OIO dated 16.10.2012 issued by Additional Commissioner, Ghaziabad Commissionerate, where consignment of 12, 13. 14. 15 and 16 was loaded from Rs. 31,68,002/- to Rs. 72,86,562/- and a redemption fine of Rs. 14 Lakhs was imposed under Section 125 of Customs Act, 1962. A copy of Adjudication order No. 123/2012 dated 04.5.2012 issued by Additional Commission....
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....e rejected as the appellants have paid the invoiced price only which is the sole consideration. Revenue does not have any evidence that any amount in excess of the invoice value has been repatriated to the supplier of the goods. He also argued that value of used tyres depend upon the condition of each tyre depending the extent of use, residual life, condition of roads where the tyres are used, brand of the tyres, country of origin of the tyres etc. That for arriving at the assessable value from the market survey by deducting 30 to 35% on account of Customs duty, transportation, clearance expenses and reasonable profit is a highly unreasonable method of valuation without doing actual market survey and cannot be made as the basis for valuation and loading of value. That Rule 7 of the Customs Valuation Rules can only be made applicable if there is any evidence to reject Transaction Value. In the present case no Chartered Engineers certificate is relied upon by the Revenue to arrive at a value based on deductive method under Rule 7. (x) That present are not a cases for confiscation and re-export of imported goods on payment of redemption fine and the goods are required to be released....
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.... case that not only BIS standards were required to be complied but the imported goods also represent Hazardous cargo for which NOC from Ministry of Environment and Forest was required under the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008. 4.1 Learned AR relied upon the following judgments and circulars to support his arguments while defending the Orders-in-Original:- (a) Commissioner of Customs (Imports) Chennai vs. V.S. Govinda [2013 (287) ELT 161 (Mad.)] (b) Royal Carbon Black (P) Limited vs. CC of Customs, Mumbai [2012 (275) ELT 528 (Bom.)] (c) Commissioner of Customs vs. Mass Trading Co. & Others [2013-TIOL-505-HC-MAD-CUS.] (d) Commissioner of Customs vs. P.V. Ukkru International Trade [2009 (235) ELT 229 (Kerla)] (e) Pine Chemical Suppliers vs. Collector of Customs [1993 (67) ELT 25 (SC)] 5. Heard both sides and perused the case records. While deciding the case, the adjudicating authority has framed the following issues in Para 53 of the OIO:- (i) Whether the impugned tyres can be used for motor vehicles as such or after re-treading or are merely usable by the animal driven vehicles (ADV)? If used for motor vehicles, whether the same ....
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....rities, New Delhi and clarification No. 10 (22) 2012-LR dated 12.11.2012 from Department of Industrial Policy and Promotions. It is seen from the clarification No. 10 (22)/ 2012-LR dated 12.11.2012 issued by Director, Department of Industrial Policy and Promotions to OSD (Customs), Tariff, Unit, CBEC, New Delhi and its covering letter No. CMD-1 dated 23.11.2012, written by Sc. And Head (C. No. 1) of BIS, New Delhi to Commissioner of Customs, Kandla that import of old and used tyres cannot be allowed without BIS standards being observed. On the other hand it is evident from Para 2.17 of the Chapter 2 of General Provisions regarding Imports and Exports Policy, import of all second hand goods is only restricted and not absolutely prohibited. As per Chapter 40 of Import Policy specified for heading 40122010 and 40122020, under which the adjudicating authority has classified the old and used tyres capable of being used imported old and used tyres are only a restricted item. It is also observed from letter C.No. VIII/ICD/TKD/6AG/202/11 dated 12.1.2012, written by Commissioner ICD Tughlakabad, New Delhi to CC (Customs), Delhi, that there is no requirement of applying BIS standards in the ....
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....hich adjudicating authority has classified under CTH 40040000. This percentage is showing vide variation from 2% to 20% or even more, as per the expert opinions available on record. Accordingly this quantity of waste and scrap tyres will belong to category of Hazardous Waste as held by Madras High Court in the case of Commissioner of Customs (Imports) Chennai vs. V.S. Govindan [2013 (287) ELT 161 (Mad.)], where nearly 90% of the imported tyres were found to be part-worn tyres. In the present imported consignment 80-90% tyres are capable of being used as such or after retreading for fast moving and heavy loaded vehicles but appellants, as per the description, have claimed to have imported these tyres for the use of ADVs and cannot be considered as Hazardous Waste and scrap once they are capable of being used as such or after retreading. However, as held earlier the waste/ scrap tyres not capable of being used as such or after retreading, will have to be considered as Hazardous Waste for which NOC from Ministry of Environment and Forest was required under the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008. In the absence of such NOC that percentage of ....
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....uthority on the basis of valuation done by the Govt. approved valuer. It was also found by the Adjudicating authority that there was no alternative with the department to determine the value of the consignments other than the method adopted in the SCN as no contemporary transaction of the identified goods was available. It is also observed from Para 5 of the OIO No KDL/Commr/49/2012-13 dated 10.01.2013 passed by Adjudicating authority that similar consignments were being imported by Appellant M/s Universal Trading Company in the year 2009 which were assessed by accepting the declared value and allowed clearance on a redemption fine of around 90% of the declared value along with heavy penalty. But in the present imports, prima facie, there appeared to be a mis-declaration in the imports of old and used tyres which were got examined by the tyre engineer of M/s Indian Rubber Manufacturers Association (IRMRA). For determining the assessable value under Rule 7 of the Customs Valuation Rules 2007, the services of one Shri Rakesh C Singh of Accurate Appraisal Services, Andheri (E), Mumbai, were availed who visited the place of import on 27.3.2012 and gave his report from Mumbai on 30.3.20....
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....mmissionerate respectively. In one case of such tyre imports assessable value has been enhanced from Rs 16.98 lakh Rs 33.52 lakh and allowed Clearance officer imposing of Rs 6.7 lakh RF and imposing Rs. 3.35 Lakh penalty. In the second case relied upon by appellants the assessable value of Rs. 31.68 Lakh has been enhanced to Rs. 72.87 Lakh and allowed clearance on a redemption fine of Rs. 14 Lakh and a penalty of Rs. 7.5 lakh. These two yardsticks adopted by the other Commissionerates indicate that during relevant time for similar imports there was an enhancement of assessable value by which the declared value was being raised to the extent of 100 to 130%. Such an enhancement in assessable value is required as appellants have themselves accepted by providing copy of their survey/valuation report that higher amount can be fetched by the consignments when sold in India. But as already observed earlier, there is no evidence with the Revenue that extra amounts have been remitted by the appellants for the current imports to the supplier of the goods. Appellants have also given correct description of the imported goods that old and used tyres are not fit for use for fast moving vehicles ....