Custom, Excise & Service Tax Tribunal
Bhagwati Tyres vs C.C. & C.E. & S.T-Noida on 30 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
Appeal No. C/52435/2015-CU[SM]
Arising out of Order-in-Appeal No. NOI/CUSTM/OOO/APP/407/2014-15 dated 23.03.2015 passed by Commissioner Appeals(2), Customs and Central Excise, Noida.
For approval and signature:
HONBLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? : No
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
Bhagwati Tyres APPELLANT
VERSUS
C.C. & C.E. & S.T-Noida RESPONDENT
APPEARANCE Shri Gopal Verma, Advocate for the Appellant Shri Rajeev Ranjan, (Joint. Commr.) (A.R.) for the Department CORAM:
HONBLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) DATE OF HEARING & PRONOUNCEMENT : 30. 08. 2016 FINAL ORDER NO.-70850/2016 Per Mr. Anil G. Shakkarwar :
The appellant filed Bill of Entry No. 3328236 dated 20.09.2013 for clearance of old and used tyres claiming classification under CTH 40122020 for 4,910 numbers of goods with assessable value declared as Rs.17,01,599.53/-. It appeared to Revenue that old and used tyres fall under schedule III Part B- List of Hazardous Wastes Applicable for Import & Export of Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008 at Basel No. B-3140 with description as Waste of Pneumatic Tyres which can be imported with the permission of Ministry of Environment and Forest. After adjudicating of the matter, the Original Authority issued Order-in Original No. 25/JC/CUS/ICD-DD/2014 dated 31.12.2014 holding that the appellant has imported the used tyres or second hand old and used tyres categorized as hazardous goods under said Rules, 2008 without obtaining the required authorization from DGFT and without obtaining the valid permission from Ministry of Environment and Forest. The Original Authority, therefore, ordered confiscation of the goods imported under Section 111(d) & (o) of the Customs Act, 1962 and gave an option to redeem the goods on payment of redemption fine of Rs.3,40,000/- under Section 125 of the Customs Act, 1962 and ordered re-export of the same goods and also imposed penalty of Rs.1,70,000/- on appellant under Section 112 (a) of Customs Act, 1962. Aggrieved by the said Order-in-Original, appellant preferred appeal before Commissioner (Appeals), Noida who passed Order-in-Appeal No. NOI/CUSTM/000/APP/407/2014-15 dated 23.03.2015 holding that he did not find any infirmity in the Original Authoritys order for confiscation of goods, imposition of redemption fine and order for re-export of the goods, and accordingly, rejected the appeal.
2. Aggrieved by the said Order-in-Appeal dated 23.03.2015, the appellant is before this Tribunal on the following grounds :-
(A) In terms of Exim Code 401232020 of the ITC (H.S.) classification second hand tyres are allowed to be imported subject to the condition that the CIF value is equal to or more than USD 25 per piece. Therefore, this being the only condition imposed for imposition of second hand tyres, the observation of Original Authority that the import of old and used tyres requires special import license is contrary to the provision of Foreign Trade Policy.
(b) It is undisputed fact as established from the examination report of the Customs Officers that the consignment in the instant case comprised old and used tyres in reusable condition having substantial residual life and not scrap of tyres.
(c) Consignment being of old and used tyres does not get covered by provision of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008.
Appellant further relied on the final order by this Tribunal in the case of M/s. Jibran Overseas vs. C.C., Ghaziabad in Customs Appeal No. 54848 of 2014 and submitted that this Tribunal vide his final order No. 51473 of 2015 dated 08.04.2015 has dealt with goods under similar circumstances and held that the goods under similar circumstances did not get hit by mischief of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 in the sense that their import did not require permission of MoEF, absolute confiscation thereof is not warranted. It was also held that the goods were allowed clearance on redemption fine of 15% of the assessable value and penalty of 10% of the of the assessable value.
3. The learned counsel for the appellant took me through the relied upon final order No. 51473 of 2015 dated 08.04.2015 in the case of M/s. Jibran Overseas vs. C.C., Ghaziabad passed by Division Bench of this Tribunal and compared their case with the relied upon case laws under similar facts and circumstances and urged that the said case law is squarely applicable to their present case.
4. Learned D.R. relied upon the impugned Order-in-Original and Order- in-Appeal.
5. I have carefully gone through the case records and relied upon case law, I find that ordering of confiscation and again ordering re-export of confiscated goods is contrary to each other. On absolute confiscation, the goods became property of Government of India and appellant does not have any authority to export the same. I find that the relied upon case is squarely applicable in the present case I therefore, modify the Order-in-Appeal and Order-in-Original to following extent :-
(i) I uphold the confiscation of the goods under Section 111(d) of Customs Act and allow the redemption of the same on fine of 15% of the assessable value.
(ii) I uphold the imposition of penalty on the importer under Section 112 of the Customs Act, 1962 to the extent of 10% of the assessable value; and
(iii) I uphold that the applicable duty on the assessable value shall be payable if the goods are taken/released on payment of Customs duty, redemption fine and penalty. The goods shall be released by completing customs formality within two weeks of payment of customs duty, redemption fine and penalty.
6. The appeal is allowed partially in above terms.
(Order was dictated in the open Court) (ANIL G. SHAKKARWAR) MEMBER (TECHNICAL) patel/-
5C/52435/2015-CU[SM]