TMI Blog2015 (11) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... trative instructions and has no enforceability in law. Under the circumstances, the prohibition contained in the impugned office memorandum not being backed by any statutory provisions, prima facie, cannot be relied upon for the purpose of refusing to process the bills of entry submitted by the applicant. - applicant has made out a prima facie case for grant of interim relief. The balance of convenience also lies in favour of the applicant, inasmuch as, the import in question, prima facie, does not appear to be governed by the rules - Decided in favour of assessee - CIVIL APPLICATION (FOR DIRECTION) NO. 9587 of 2015, In SPECIAL CIVIL APPLICATION NO. 8492 of 2015 - - - Dated:- 6-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE APPELLANT : MR DEVEN PARIKH, SR. ADVOCATE with MR S N THAKKAR, ADVOCATE FOR THE RESPONDENT : MR RJ OZA, ADVOCATE, MS TRUSHA PATEL, GOVERNMENT PLEADER with MR PRIYANK, P. LODHA, AGP ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. By this application, the applicant seeks a direction to the opponent No.3, Assistant Commissioner of Customs, Mundra to permit the provisional clearance of import of old and used tyres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of rubber, solid or cushion tyres, tyre treads and tyre flaps of rubber and which are freely importable. However, the Customs Department has taken a view that such tyres would fall under entry 4012 2010 or 4012 2020, that is imports whereof are restricted and which would therefore require a licence for such import and in case the import is without licence, the same is subject to fine in lieu of confiscation. 4. It was submitted that insofar as waste pneumatic tyres are concerned the same would be covered by entry 4004 00 00 under the description waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom . Even the said import only falls within the restricted category and import thereof is not prohibited. It was submitted that the stand of the Customs Department is that the import of the said consignment cannot be permitted in view of the impugned office memorandum dated 24.11.2014 of the Ministry of Environment and Forests whereby it has been informed that the import of second hand tyres in the country for direct reuse is not permitted. It was submitted that such memorandum is administrative in nature and not a decision of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned standing counsel for the respondents No.1 and 2 submitted that the used tyres for reuse fall under Schedule III Part-B (B-3140) of the rules and hence, are regulated for the purpose of import/export. Accordingly, the applicant has to apply to the Ministry of Environment and Forests for import of used tyres for any purpose including reuse thereof. Therefore, they are hazardous substances in relation to the import of which, permission is required to be obtained under rule 16 of the rules. It was submitted that the impugned office memorandum has been issued pursuant to the discussion and conclusions of the 33rd Technical Review Committee meeting constituted under the rules held on 28.10.2014 which was acceded to by the Ministry of Environment and Forests. Referring to Schedule III (Part B) of the rules, it was pointed out that as per rule 14(2) read with the note given below the Table, all other wastes listed in this Schedule -3 (Part-B having no star/s (*...) can only be imported in to the country with the permission of MoEF . Thus, the applicant is statutorily required to obtain prior permission of the Ministry of Environment and Forests for import of all such waste with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under 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 CTI (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: Waste pneumatic tyres, excluding those destined for Annex IV A operations. 13. Annexure IV bears the heading Disposal Operations . Section-A thereof bears the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) Rules, 2008. 15. On behalf of the respondents, reliance has been placed on rule 23 read with Schedule VII to the rules. In the opinion of this court, rule 23 of the rules merely provides for duties of various authorities and Schedule VII enumerates the duties cast upon the authorities mentioned therein. It cannot be gainsaid that duty is not synonymous with power. 16. In the absence of any power conferred upon the Ministry of Environment and Forests, to specify any additional category of hazardous wastes being traceable to any provisions of the Act or the rules, the impugned memorandum, as rightly submitted by the learned counsel for the applicant, is merely in the nature of administrative instructions and has no enforceability in law. Under the circumstances, the prohibition contained in the impugned office memorandum not being backed by any statutory provisions, prima facie , cannot be relied upon for the purpose of refusing to process the bills of entry submitted by the applicant. 17. In the aforesaid premises, the court is of the view that the applicant has made out a prima facie case for grant of interim relief. The balance of convenience also lies in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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