TaxTMI 
TaxTMI 
2020 (10) TMI 597
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....l\ For Appellants 2 & 3 in all the Writ Appeals : Mr. V. Vijaykarthikeyan Standing Counsel For Respondent in all the Writ Appeals : Mr. A.K. Jayaraj * * * * * COMMON JUDGMENT (Judgment of the Court was delivered by M. SATHYANARAYANAN, J) The official respondents in W.P.(MD) Nos.2355, 4040, 1242, 4076, 3042, 1295, 4080, 2377 and 10822 of 2020 had preferred these Writ Appeals, while making a challenge to the common orders dated 25.08.2020 and 03.09.2020 passed in those Writ Petitions. 2. The facts leading to the filing of the present Writ Appeals have been narrated in the impugned common orders passed in the Writ Petitions and for the sake of brevity, the facts are not repeated. 3. In sum and substance, it is the case of the respondent/writ petitioner in the Writ Petitions that they had imported huge tonnes of "Used Rubber Tyre Cut into Two Pieces" (used Rubber Tyre with one cut in bead wire) in containers, shipped from M/s. Primary Resources Lnc., USA and claimed for clearance of the goods for home consumption. It is the specific case of the respondent/writ petitioner that the said goods are freely importable under policy conditions and also under CTH 40040000 and they had s....
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.... the guise of 'used tyres cut in two pieces' and that apart, 'used rubber tyres' are restricted under Foreign Trade Policy and without valid authorization from the Director General of Foreign Trade, the respondent/writ petitioner has imported the goods and hence, the same cannot be released and therefore, prayed for dismissal of the Writ Petition. 7. The learned Single Judge, after taking note of the factual aspects, relevant legal provisions and the various decisions rendered by the Hon'ble Supreme Court of India as well as this Court has allowed the Writ Petitions by directing the appellants/respondents to assess and permit the provisional release of the goods in question, upon payment of applicable duties of customs subject. A further direction was also issued to the appellants/respondents to release the goods after assessing and collecting the customs duty and other charges provisionally within a period of three weeks from the date of receipt of a copy of this order and further that the adjudication can go on with certain other directions. The official respondents aggrieved by the allowing of the Writ Petitions with certain directions had filed these Writ Appeals. 8. The lear....
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....o brought to the notice of this Court the Office Memorandum dated 01.07.2016 of Department of Industrial Policy and Promotion, LR Section, Ministry of Commerce and Industry dated 01.07.2016, which says about the Revision of Import Policy for Import of Items under Exim Code 40040000 under ITC(HS), 2012 Schedule - I (Import Policy) and in paragraph No.2, it is opined as follows: "2. If Directorate General of Foreign Trade (DGFT) feels that making policy as "impact of used rubber tyres/tubes cut into two separate pieces, however, is free" will prevent its misuse, then this Department has no objection for the same subject to condition that it should not be used for extracting oil." 13. The learned counsel appearing for the respondent/writ petitioner, on factual aspects also disputes the stand of the appellants/ Revenue by submitting that what was imported is tyres cut into two pieces (used tyres with cut in bead wire) and even for the sake of convenience, admits the stand of the appellants/respondents, it can only be construed as a restrictive item. 14. The learned counsel appearing for the respondent/writ petitioner by drawing the attention of this Court to the judgment rendered b....
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.... has drawn the attention of this Court to the Mahazars, wherein, it has been recorded that except a few containers in which the bead wires were found to be cut into many pieces, in many containers used rubber tyres were found to be cut into many horizontal pieces without any cut in the beat wires and in the light of the Foreign Trade Policy 2015-2020, only the import of used rubber tyres with one cut in the bead wire is free, otherwise, the same is restricted and having come to know about the same, have handed over the possession of the cargo to the custodian, M/s.ASSA CFS, Tuticorin for safe custody. 20. The learned counsel for the appellants/respondents has drawn the attention of this Court to Schedule III of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, especially, the entry B3140 as well as entry B3140 of Schedule VI and would submit that if the imported waste, namely, waste pnecumatic and other tyres, excluding those which do not lead to reasonable recovery, recycling, reclamation but nor for direct reuse and waste pnecumatic tyres for direct reuse respectively, at best it can be considered as restricted item in the light of Atul Automati....
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.... respondent/importer. 26. The Hon'ble Apex Court in Atul Automations Pvt. Ltd. case (supra) had dealt with the aspect relating to prohibition/restriction of goods and in paragraph No.9 observed as follows: "9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made Under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Fo....