Customs, Excise and Gold Tribunal - Delhi
Asian Rubber Works vs Commissioner Of Customs on 20 November, 1998
Equivalent citations: 1999(105)ELT291(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. This application has been captioned by the appellant as to rectify the mistakes and Ironing out the creases on account of inadvertent mistakes which has crept in Final Order No. 801/98-C, dated 17-9-1998.
2. It is stated that the basis of the present application is as a result of earlier miscellaneous application filed on 30-6-1998 for consideration before the third Member who was to hear the differences of opinion between the original two Members on the questions formulated by the Original Bench. The basis of the said Miscellaneous Application filed on 30-6-1998 was inter alia the submission of the appellant that the direction of the learned Members was to cut the tyres into two pieces before clearance for home consumption was an error apparent on the face of the record in view of the following :-
(i) It is stated that it is the condition in which the goods are imported that determines:
(a) the importability under the import policy;
(b) the classification; and
(c) the rate of duty.
(ii) The tyres in question were imported without any cut. Such tyres are classifiable under Heading 4011.99 of Central Excise Tariff Act. For that reason the tyres in question were classified under Heading 4011.99. As the uncut tyres were not permissible for import, therefore, the order of confiscation goods by the authorities was confirmed and the same were directed to be released on payment of redemption fine and also subject to the goods being ordered to cut into two pieces.
(iii) In the present Miscellaneous application seeking rectification, the appellants contend that such an order for cutting the tyres into two pieces could make the tyres a waste and such waste would ho longer be classifiable for the purposes of GET under Heading 4011.99 under the residuary heading of pneumatic tyres of rubber, but such waste, parrings and scrap of rubber would be classifiable only under Heading 4004.00 of GET.
(iv) In terms of Section 24 of Customs Act, 1962 duty of imported goods after mutilation in Customs custody is chargeable at such rate as is applicable to the goods, had these been imported in the mutilated form.
(v) It is also stated that from the reading of third Member's order an impression is gathered that he did not ordered for cutting of the tyres in question as proposed in the order of Member (Judicial). However, he had agreed that the order of Member (Judicial) for confiscation subject to option of payment of redemption fine.
3. Therefore, it is prayed by the appellant that the order relating to cutting/mutilation of tyres strikes at the root of the order directing classification of goods under Heading 4011.99 of CETA, and hence such an order cannot be co-exist with;
(a) The order upholding violation of ITC provision, confiscation and penalty,
(b) With the order upholding classification of goods in question under Heading 4011.99 of CETA as unanimously upheld by both the Members. Therefore, they prayed that the order with regard to cutting/mutilation of tyres has got embodied or introduced in the order through inadvertance or misprision, and such direction is unsustainable in view of certain judgments noted by them.
4. We have heard Shri A.C. Jain, learned Advocate for the appellants and Shri H.K. Jain, learned SDR for the revenue. Both sides reiterated their position. Learned Advocate sought for classification of the goods under change Heading 4004.00 of GET in view of the order of the Bench directing the goods to be treated as waste and also for rectification of the mistakes in the order, which gives the direction to cut the tyres.
5. Learned SDR pointed out that the classification for GET purpose has been unanimously held by both the Members under Heading 4011.99 and there is no dispute by the party also. Hence on this ground, question of re-considering classification in a rectification application is beyond the scope of an application for rectification, as an application for rectification should merely point to an apparent mistake and not regarding the appeal or to make out a fresh ground for reviewing the order. He also submitted that goods could be released only after mutilation and being cut into two pieces as the goods had been imported without licence and in this regard the Bench had followed the judgment of the Tribunal in the case of Kakkar & Co., which has since been confirmed by the Supreme Court. The Bench has also noted several other judgments and followed the ratio of the well settled law which requires mutilation of goods imported without licence and imported under Import Policy. Learned SDR pointed out that classification for GET purpose is independent of classification under Import and Export Policy. The policy regulates regarding mutilation of goods in case of violation of licence. Hence such an order cannot be reviewed through this application.
6. On a careful consideration of the submissions made in this application and also after going through the final order we are of the considered opinion there is no mistake apparent on record calling for rectification of any mistakes. The prayer made by the applicants for change of classification is a new ground which was not raised at the time of the assessment of the goods before the authorities or before the Tribunal and their prayer in the application to uphold to classification under Heading 4004.00 is beyond the scope of an ROM application and the final order cannot be reviewed as this is a fresh and new ground, which was not before the authorities or before the Tribunal.
7. The further prayed made by the appellant that the goods should be directed to be released without cutting and such an order is due to an advertent error is not a correct noted and discussed in great length and it was noted that there was a clear violation of the import policy and the policy prohibited importing tyres without licence. As the importer had imported the same and they could be released under OGL only on the goods being mutilated. The Tribunal in para 30 of the order in the case of M.A. Exports v. CCE which order for levying for CVD and also which upheld the classification under Heading 4011.99. The Tribunal also noted in para 31 that the goods having been imported without advance licence could be released only on being cut in two pieces in terms of the Handbook of Export and Import Policy, 1992-97 as issued on 30-3-1994. In this regard Kakkar & Co. case was referred and it was noted that in terms of this judgment the goods were directed to be released after the importer carrying out the mutilation of the same. It was also noted that at the relevant time the Handbook of procedure itself permitted import of used rubber tyres/tubes cut into two pieces, hence without licence the same could be permitted to be cleared on the importers' mutilating the same under the Customs supervision. In the Import Policy 1992-93, it has been clearly laid down that goods could be imported as used tyres and hence this order has been passed conciously after taking into consideration the entire law laid down in the cited judgments. Further, classification for CVD purpose under CET 1985 in an independent aspect from classification under the import policy. Therefore, the prayer of the appellant to change the classification and for a giving direction to release the goods without cutting into two pieces is beyond the scope of rectification application. It is also seen that the third Member had agreed with Member (Judicial), therefore it follows that there was unanimity in the view of the Members for release of goods after mutilation. In that view, of the matter, we hold that there is no mistake in the order. Hence, the application is rejected.
S.K. Bhatnagar, Vice President
8. I would only like to emphasise that the issue of classification of goods for Customs (including CVD purposes) is a matter different and distinguishable from the issues relating to compliance or otherwise with Import Policy. The final order has been passed in the light of majority decision consciously taken and there is no error apparent on the face of record therein. Hence, I agree with my learned colleague that the application is required to be rejected.