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M/s Jibran Overseas Versus CC, Ghaziabad

2015 (11) TMI 1020 - CESTAT NEW DELHI

Import of restricted items being used tyres - Misdeclaration of goods - Undervaluation of goods - Confiscation of goods - Imposition of redemption fine and penalty - Captive consumption - Held that:- As per ITC (HS) Classification the impugned goods are not freely importable under the Import and Export Policy by virtue of the fact that their value even after revision upward is less than US$25 per piece and to that extent the violation of Section 111(d) of the Customs Act is established making th .....

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r direct reuse. The impugned tyres without any doubt are directly reusable and hence are clearly excluded from the said entry B-3140. Thus, the adjudicating authority is not correct to hold (as it did in para 5.20 of the impugned order) that Basel B-3140 covers all used tyres which lead to resource recovery, recycling, reclamation or direct us. Further the adjudicating authority in the said para 5.20 takes due note of the fact that goods listed in Part B do not require prior permission but comes .....

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dentally, it may be pertinent to state that the fact that the impugned goods are not covered under the said Part-B does not mean that their import requires prior permission of MoEF, more so because they are not covered under the said Part-A. Thus, the adjudicating authority is not right in holding that the impugned tyres required permission of MoEF for import and therefore absolute confiscation ordered on that count is unsustainable.

Regarding valuation - Adjudicating authority has sy .....

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the confiscation of the impugned goods under Section 111(d) and 111(m) of the Act ibid as also the upward revision of value. However, in the facts and circumstances of the case including the fact that the goods are awaiting clearance for so long, we allow redemption of the same on fine of 15% of the redetermined value. We also impose a penalty of 10% of the redetermined value under Section 112 of Customs Act, 1962 - Decided partly in favour of assessee. - Customs Misc. Application No. 50634 of .....

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me consumption on redemption fine. Reasonable cause having been shown, we allow the miscellaneous application. 2. Appeal has been filed against order in original 02/CUS/COMMR/GZB/2014-15 dated 30.07.2014 in terms of which the following order was passed. 1. I reject the declared assessable value of ₹ 71,09,495.76 for the goods imported vide Bill of Entry No. 2678130 & 2678036 both dated 11.07.2013, 2757988 dated 19.07.2013 & 2789242 dated 23.07.2013 under Rule 12 of the Customs Valu .....

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; 2789242 dated 23.07.2013 under Section 111(d), (m) & (o) of the Customs Act, 1962. Further, since the impugned goods have been illegally trafficked into India in contravention of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, hence in terms of Rule 17(2) impugned goods are ordered to be re-exported. Therefore, I refrain from giving any option to the importer M/s Jibran Overseas, 6518/24, Bara Hindu Rao, New Delhi-110006 for redemption of the said goods .....

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hereof. (2) In terms of the ITC (HS) classification, the import of impugned used tyres classifiable under CTH 401232020 is restricted as the value thereof was less than US D25 per piece. (3) The impugned tyres were covered under Entry B-3140 in Part-B (list of hazard waste applicable for import and export not requiring prior informed consent) of Schedule-III of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (hereinafter referred to as the said Rules) and there .....

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. (iii) The impugned tyres are not covered under Entry No. B-3140 in the said List B as these are directly reusable because they still have 45% to 50% residual life. (iv) Part A of Schedule-III of the said Rules covers items for the import of which the permission is required from MoEF and old and used tyres do not figures in that list. (v) In these circumstances, absolute confiscation is not warranted. (vi) Such goods have been cleared on redemption fine and personal penalty for domestic use. 5. .....

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after revision upward is less than US$25 per piece and to that extent the violation of Section 111(d) of the Customs Act is established making the goods liable to confiscation and consequently making the importer liable to penalty. This point is not disputed by the importer also and therefore hardly needs further elaboration. However, we find that the impugned goods do not figure in Part A of Schedule-III of the said Rules. The said list contains the description of goods import of which require .....

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r) that Basel B-3140 covers all used tyres which lead to resource recovery, recycling, reclamation or direct us. Further the adjudicating authority in the said para 5.20 takes due note of the fact that goods listed in Part B do not require prior permission but comes to a finding that the impugned goods require permission of MoEF in the following words: I also observe that though PART-B lists Hazardous Wastes applicable for Import and Export which does not require prior informed consent in terms .....

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res can be used for recovery of resource, or reclamation or even can lead to direct reuse still it would require for import in to the country, the permission of MOEF. Thus, capability to use the goods does not absolve the requirement of permission of MOEF for import . We are not able to comprehend the basis/ logic contained in the above quoted paragraph to sustain the conclusion that the impugned goods require permission of MoEF for their import. 7. As regards the opinion of Central Pollution Co .....

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alytical methods also required to be standardised for this purpose. The said report is evidently incorrect because used tyres which are directly reusable (as the impugned tyres are) are excluded from the entry B-3140. Further as the CPCB could not carry out testing of impugned tyres, their opinion could not have been based on factual data in any case. Further, as has been recorded in the impugned order, the Delhi High Court perused the CPCB report and directed the adjudicating authority to pass .....

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ugned goods do not figure in Part A of the said Schedule-III which contains list of items requiring MoEF s permission for import. Incidentally, it may be pertinent to state that the fact that the impugned goods are not covered under the said Part-B does not mean that their import requires prior permission of MoEF, more so because they are not covered under the said Part-A. Thus, the adjudicating authority is not right in holding that the impugned tyres required permission of MoEF for import and .....

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he case of Universal Trading Co. vs. CC, Kandla vide its order No. KDL/COMMR/48/2012-13 dt. 09.01.2013 also did not hold that such used (reusable) tyres required permission of MoEF for import. 9. As regards the value, we find that the adjudicating authority has systematically dealt with this issue, first coming to a finding as to why the transaction value was not acceptable and then re-determining the value as per the provision of Customs (Determination of Value of Imported Goods) Rules, 2007. W .....

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