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KADRI ENTERPRISE A PROPRIETOR CONCERN OF GULAM RASUL GULAM MUSTUFA SHAIKH Versus UNION OF INDIA & 2

2015 (11) TMI 677 - GUJARAT HIGH COURT

Import of old and used tyres - prohibited goods or restricted goods - Permission for provisional clearance of import of old and used tyres - Held that:- Goods that are covered thereunder 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 cle .....

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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. - 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 que .....

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ANI) 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 made by the applicant under Bills of Entry No.17 and 18 of 2015 dated 16.03.2015. 2. The applicant herein is the original petitioner, who has filed the captioned petition challenging the order dated 22.04.2015 passed by the opponent No.3 whereby, the applicant s request for assessment of Bills of Entry No. .....

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ch goods on the ground that such import not being permissible under some office memorandum issued by the Ministry of Environment and Forests. 3. Mr. Devan Parikh, Senior Advocate, learned counsel for the applicant submitted that the consignment sought to be imported and as imported has all along been described as old and used discarded tyres not fit for fast moving vehicles and heavy loaded vehicles . Such import is of old and used tyres for re-use since the said tyres have a 55% residual life a .....

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ng of rubber and rubber goods definitely not usable as such because of cutting up, wear or other reasons. It was submitted that only the imports of waste pneumatic tyres would be covered by the said entry 4004 00 00 which reads as Waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom . Whereas the classification of the consignment in question, that is, old and pneumatic tyres would be covered by entry 4012 20 90 under the residual entry others of .....

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ted 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 .....

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ovement) Rules, 2008 (hereinafter referred to as the rules ). There is no dispute with regard to the fact that tyres imported by the applicant are in good condition and usable. Reference was made to the certificate dated 24.3.2015 of the Surveyor, Assessor and Valuer as appointed by the Customs Department who has certified that the tyres inspected on random basis are not new ones but in GOOD CONDITION and USABLE. During the inspection, it is observed that there is no scrap tyres. . Moreover, the .....

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d with entry No.B-3140 (being Part- B) of the rules and can be imported only with the prior permission of the Ministry of Environment and Forests. It was submitted that the stand of the Ministry of Environment and Forests is based on a misreading of the provisions of the rules for the reason that undisputedly the import in question is of used pneumatic tyres and not of waste or scrap tyres which are entirely different. It was submitted that Part-B of Schedule- III to the rules is based on rule 9 .....

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provisions of the law, the relief, as prayed for in the application, deserves to be granted. 7. Vehemently opposing the application, Ms Trusha Patel, 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 th .....

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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 without star/s which include waste pneumatic tyres, excluding those which do not lead to resource recovery, recycling or direct reuse as listed at B-3140 of S .....

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As regards the validity of the impugned office memorandum, the attention of the court was invited to rule 23 of the rules, to point out that the same provides that the Authority specified in column 2 of Schedule VII shall perform the duties as specified in column 3 of the Schedule, subject to the provisions of the rules. Referring to Schedule VII, the learned counsel pointed out the duties of the Ministry of Environment and Forests. It was submitted that one of the duties cast upon the Ministry .....

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a, learned senior standing counsel for the respondent No.3 adopted the arguments advanced on behalf of the respondents No.1 and 2. 9. As noted hereinabove, the Ministry of Environment and Forests contends that the import in question is of waste pneumatic tyres falling under B-3140 of Schedule III to the rules. The record of the case shows that undisputedly, the goods imported by the applicant - petitioner are used pneumatic tyres fit for reuse. In the above backdrop reference may be made to entr .....

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fication 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 base .....

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direct re-use or alternative uses and encompasses all such disposal operations which occur in practice. The disposal operations, inter alia, include deposit into or onto land (e.g. landfill, etc.); land treatment (biodegradation of liquid or sludgy discards in soils, etc.); deep injection (e.g., injection of pumpable discards into wells, salt domes of naturally occurring repositories, etc.); surface impoundment (e.g. placement of liquid or sludge discards into pits, ponds or lagoons, etc.); spec .....

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in final compounds or mixtures which are discarded by means of any of the operations in Section A (e.g., evaporation, drying, calcination, neutralization, precipitation, etc.); and incineration on land, etc. Therefore, even waste pneumatic tyres, if they are destined for the operations enumerated under Section-A of Appendix IV, do not fall within the category of waste pneumatic tyres. Under the circumstances, the import in question which is comprised of used pneumatic tyres which are described a .....

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icability of rule 16 and 17 of the rules would not arise. 14. As regards the impugned office memorandum, the same does not appear to be relatable to any power conferred by the Act or the rules framed thereunder, including the Hazardous Waste (Management, Handling and Transboundary Movement) 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 .....

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