TMI Blog2014 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are in the nature of used or waste. In our considered view, this should be examined by the adjudicating authority in the light of the decision of the Tribunal in the case of Universal (2013 (11) TMI 856 - CESTAT AHMEDABAD). Accordingly, we direct the adjudicating authority to examine all the issues to the extent of appeals filed by the three importers. - Matter remanded back - Decided in favour of assessee. - C/316/2011 & C/365 - 370/2011 - - - Dated:- 26-6-2014 - SHRI P.K. DAS AND SHRI R. PERIASAMI, JJ. For the Appellant : Shri V. Srinivasan, Adv, Shri B. Vijay, Adv., For the Respondent : Shri Rammohan Rao, DC (AR) JUDGEMENT Common issue involved in these appeals and therefore all are taken up together for disposal. All the appeals except appeal No. C/370/2011 is arising out of the common order passed by the Commissioner (Appeals). In Appeal No. C/370/2011, Revenue filed the appeal and no appeal was filed by the respondent. All the appeals are related to import of similar named Used Pneumatic Tyres. 2. For the purpose of proper appreciation of the facts of the case, we take up the appeal C/316/2011, filed by M/s. Al Noor Exports Imports. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Imports Rs.3,00,000/- ₹ 3,00,000/- M/s. Colombo Agencies ₹ 1,00,000/- ₹ 1,00,000/- 4. All the importers filed appeal before the Commissioner (Appeals). By impugned order C.Cus.No.548-550/2011 dated 23.08.2011, the Commissioner (Appeals), disposed of the appeals of first three importers . By Order C. Cus. No. 604/2011 dated 26.08.2011, Commissioner (Appeals) decided the appeal of the fourth importer (M /s. Colombo Agencies). By the impugned orders, the Commissioner (Appeals) disposed of the appeals with the direction that the importers would obtain clearance from the Ministry of Environment and Forest, GOI, within 30 days from the date of receipt of this order. If the importers obtained the said certificate within such time thereafter the lower authority may follow the adjudication procedures and allow the goods for home consumption. If the importers fail to obtain the necessary clearance the original orders stand good. 5. All the three importers and the Revenue filed appeals against the OIA dated 23.08.2011. Apart from that, the Revenue also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport of waste tyres should be carried out only after obtaining prior permission of Ministry of Environment Forests, GOI. iii) There is no material placed by the revenue that the tyres hazardous in nature and would cause imminent environmental threat. iv) BASEL Convention of UN revised technical guidelines defined Hazardous wastes tyres as A tyre that is disposed of or intended to be disposed of or is required to be disposed of by the provisions of national law . Hence, the imported used tyres cannot be treated as waste tyres as per UN Revised Technical Guidelines. v) Both the authorities below had not considered the Chapter heading 4012 of the ITC Code, which provides Retreaded or used pneumatic tyres or rubber, solid or cushion tyres , which cannot be considered as waste, which will fall under 4004 of the ITC code which provides Waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom . vi) The adjudicating authority observed that these imported tyres to be included under B3140 as waste. He has ignored that both TNPCB and Chartered Engineer s observation that these goods can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Company (supra), had not considered the decision of the Honble Madras High Court. The import of similar goods of six years old in terms of Hazardous Waste Rules 2008 is illegal in terms of Rule 17 of the said rules. 9. After hearing both the sides and on perusal of the records, we find that the goods were examined by the TNPCB. The relevant portion of the report dated 26.07.2011, is reproduced below:- Thus the tyres were not new ones and only used ones and falls under waste pneumatic tyres for direct reuse. As per the provisions of the Schedule 3 of Hazardous waste (Management, Handling and Transboundary) Rules, 2008 and Hazardous waste (Management, Handling and Transboundary) 3rd Amendment Rules dated 30.03.2010, waste tyres are identified vide No. B3140 (Waste pneumatic tyres excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse), Import of waste tyres should be carried out only after obtaining prior permission of Ministry of Environment Forests, Government of India. Hence, as per the provisions of Hazardous waste (Management, Handling and Transboundary) Rules, 2008 and amendment 2010, the waste pneum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is disposed of or intended to be disposed of or is required to be disposed of by the provisions of national law. Rule 17 of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008 under the heading Illgal Traffic provides:- 1) The export and import of hazardous wastes from and into India shall be deemed illegal if : i) It is without permission of the Central Government in accordance with these rules, or ii) the permission has been obtained through falsification, mis-representation or fraud; or iii) it does not conform to the shipping details provided in the movement documents; or iv) it results in deliberate disposal (i.e. dumping) of hazardous wastes in contravention of the Basel Convention and of general principles of International or National Law. 2) In case of illegal import of the hazardous wastes, the importer shall re-export the waste in question at his cost within a period of ninety days from the date of its arrival into India and its implementation will be ensured by the concerned State Pollution Control Board. 12. The Ld. Advocate strongly relied upon the decision of the Tribunal in the case of Universal Trading Company (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be re-exported, is deemed to be included in the redemption fine and penalties already imposed as no separate quantity and value of the waste and scrap of tyres, classifiable under 40040000, is available on record. 13. In the present case, there is no dispute regarding the valuation of the imported goods. The Revenue in their appeal stated that the Commissioner (Appeals) erroneously directed the lower authority to get a certificate from the Pollution Control Board to release the goods. In support of that, the Ld. AR strongly relied upon the decision of the Hon ble Madras High Court in the case of G.S. Govindhan (supra). In that case, the inspection report of TNPCB stated that the tyres can be used only after retreading and the authority has concluded that they are to be treated as hazardous waste. In the present case, we do not find any such finding in the TNPCB report. So, the facts in the case of G.S. Govindhan (supra) are not applicable in the present case. 14. After considering the overall facts and circumstances of the case, we do not find any clear finding from both the sides that the imported goods are in the nature of used or waste. In our considered view, this sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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