TaxTMI 
TaxTMI 
2017 (6) TMI 840
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....ion findings, the present status these tyres were not scrap items & waste and that average residual life was 7 years. The value was arrived at USD 28,880 (C&F). In the meantime, importer preferred a writ petition No.15586/2011 before Hon'ble High Court of Madras, praying for waiver of demurrage rent and detention charges, who vide their order dt. 06.07.2011 directed the department to decide the matter within 10 working days and issued further instructions in the matter. As per these directions and the importer's request, reexamination of used tyres was undertaken on 23.07.2011 by Tamil Nadu Pollution Control Board (TNPCB) engineer. Report of TNPCB was issued vide letter dt. 25.07.2011 wherein inter alia it was stated that tyres were not new ones and only used ones and fall under waste pneumatic tyres for direct reuse. The report also conveyed, inter alia, 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 200....
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....ents of BIS certificate in respect of used tyres." 2.5. In adjudication, confiscation of the goods was once again ordered, with an option to redeem the goods, only for the purpose of export on payment of redemption fine of Rs. 2,70,000/-. Penalty of Rs. 2,70,000/- was also imposed on the importer under Section 112 (a) ibid. On appeal, Commissioner (Appeals), vide impugned order dt. 03.09.2015 upheld the denovo original order and rejected the appeal filed by appellants. 2.6. Hence the appellants are once again before this forum. 3. When the matter came up for hearing, Shri A.K. Jayaraj, Ld. Advocate appeared on behalf of the appellant. The arguments put forth by the ld. counsel can be summarized as follows : i) Imported / impugned goods are freely importable in as much as the classification adopted by the Appellant which has not been 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 date....
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....le Supreme Court. This has confirmed classification of old and used tyres under CTH 40122090 which are not capable for being used on Commercial vehicles like Bus, Truck etc., or LCV of CTH 40122010 or passenger vehicles of CTH 40122020. Accordingly, in this case, without any dispute on classification of used tyres under CTH 40122090 confiscation under section 111 (d) of Customs Act 1962 is not justified. vii) The disputes in similar cases of appeals have been further decided and covered in other recent decision vide Order No.A/22359-2360/WZB/AHD/09, dated 12.11.2009 of Hon'ble CESTAT, Ahmedabad in Appeal Nos.C/1151/05 and CO/432/05 in case of M/s.M.U. Traders. This Hon'ble CESTAT, Ahmedabad has taken a view that for deciding classification of the old and used tyres under CTH 40122010 and 40122020 under which goods are restricted for import, fact of tyres usable 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 d....
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....so justified. 5.1. Heard both sides and gone through the facts of the case. 5.2. It is not in dispute that all second hand goods except second hand capital goods are restricted for imports in terms of para 2.17 of the Foreign Trade Policy, 2009-2014. From the facts on record, we find that the Government of India vide Notification dt. 07.04.2006 had included used tyres as a restricted item. This being so, the appellant would require a specific licence for the import of such used tyres which has not been produced. We therefore do not find any infirmity with that part of the order holding that the goods are liable for confiscation under Section 112 (d) of the Customs Act, 1962 read with Section 3 (3) of Foreign Trade (Development and Regulation Act, 1992, for import without specific licence. We also do not find any fault with the findings of lower authorities that for this particular 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 requir....
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....fore set aside. 5.4 Coming to the third issue concerning hazardous waste nature of the imported goods, we find from the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 that the said rules apply only to the handling of hazardous waste specified in Schedule-3 (Part-B) of the Rules which gives a 'List of Hazardous Wastes applicable for Import and Export not Requiring Prior Informed Consent' based on Annexure IX of the Basel Convention. The foot note to the schedule clarifies that all other wastes listed in Schedule-3 Part-B having 'Star/s' (*...) can only be imported in to the country with the permission of MOEF. The following entry concerns "waste tyres" : "B3140 Waste pneumatic tyres, excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse." (emphasis added) After careful analysis 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 ....
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.... lead to resource recovery, recycling, reclamation or direct reuse." 10. Thus, a plain reading of the entry shows that the goods that are covered thereunder are waste pneumatic tyres and not used pneumatic tyres. The operations mentioned in the entry are to be done to the tyres which are waste and not second-hand tyres which are to be reused. At this juncture reference may be made to the Chapter 40 of the ITC (HS) Classification of Export and Import Items, which clearly shows that there exists a category of used pneumatic tyres which fall under Exim Code 4012 20. Insofar as waste pneumatic tyres are concerned, they, prima facie, would be covered under Heading 4004 which reads thus : "Waste, parings and scrap rubber (other than hard rubber) and powders and granules obtained therefrom." 11. A perusal of Part B of Schedule III to the Rules shows that below the Table, 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....
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....cision in the case of Jibran Overseas Vs CC Ghaziabad - 2015 (329) ELT 489 (Tri.-Del.). The relevant portion of the order is reproduced below : "7. As regards the opinion of Central Pollution Control Board (CPCB) given vide letter No. B-29016/19insp.rep0/HWMD/9054, dated 23-1-2014, it is seen that the opinion contained therein is tentative inasmuch as it states that (i) the tyres appear to be used tyres (listed as item B-3140 Schedule-III of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (ii) Import of used tyres in the country needs prior approval of MoEF, and (iii) CPCB could not carry out testing of tyres as it has not analysed such samples before. Analytical methods also required to be standardised for this purpose. The said report is evidently incorrect because used tyres which are directly reusable (as the impugned tyres are) are excluded from the 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....