TMI Blog2021 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... existing tyres whenever the vehicle is used in muddy or off terrain. It can be seen that even Tractors, Dumpers etc. which are primarily designated for off the road used also travel some distances on the road till they reach the place of their use. By no stretch of imagination such vehicles and the tyres thereof can be regarded to be for on-road purposes. The Department opines that the impugned tyres are not of a kind used in vehicles which are used for mining etc - Appeal allowed - decided in favor of appellant. - Customs Appeal No. 20517 of 2021 - Final Order No.20853/2021 - Dated:- 28-12-2021 - SHRI S. K. MOHANTY, JUDICIAL MEMBER AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Mr. Devan Parikh, Sr. Advocate and Mr. G. B. Eswarappa, Advocate for the Appellant Shri P. Rama Holla, Superintendent, Authorised Representative for the Respondent ORDER Heard both sides and perused the records of the case 2. The appellant s herein M/s The Tyre Mark had imported 220 numbers of Hankook off the road mining tyres 31 x 10.5 R 15 at a declared valued at ₹ 6,81,098 and filed Bill of Entry No.8945985 dated 25.09.2020; they classified the same under CTH 40118080 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TH 40118000 . However, shed officers particularly shed Deputy Commissioner had a contrary opinion that in view of the fact that the item under dispute are restricted in nature and difference of opinion of classification of goods between assessing and shed officers, I seek your instruction for further necessary action 5. Learned Counsel submits that the issue is directly covered by Hon ble Tribunal larger Bench judgment reported at 2002 (140) ELT 273; Tribunal held that tyres meant exclusively for off the road use would fall in old TI 16 (iii) and new TI 4011.91; Supreme Court 1997 (92) ELT-14 also held that words use upon road would denote the principle of dominant use and not where it may move incidentally; use on road being only ancillary or incidental to the main use will not make it motor vehicles. He submits that as per the Hon'ble Supreme Court, dominant and primary purpose of a motor vehicle is to be dominantly used on the road. Clearly, therefore, a tyre which is used for serving its dominant purpose only can be classified as tyres meat for motor vehicles. 7. Learned Counsel submits that the present entry is even more restricted as it talks of tyr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for highway use ; communication which shows that use of such tyres like imported RT 03 mud terrain tyres need to very bad fuel efficiency, lot of noise level and they are only suggested for off roading. 9. Learned Counsel submits that www.bestdrive.com conclusively demonstrates that the difference between highway terrain (HT) , all terrain (AT) and lastly mud terrain (MT) tyres and it conclusively demonstrates that highway terrain tyres cannot be used for off roading; all terrain tyres have a bit of both characteristics and mud terrain tyres are not suitable at all for use on road; difference in characteristics of the tyres is not even disputed by the Department; though, the burden of proof is on the Department to prove classification, no single instance is shown that the tyres in question are supplied as original equipment with the vehicles; there is not a single car which is marketed with these tyres; these tyres can only be used as substitute tyres where the vehicle is to be put to ready rough off road use; the purpose of the tyres is not to be used as regular pneumatic tyres for motor cars. Reliance on the Clarification by the Indian subsidiary is clearly erroneous; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as the technical specifications mentioned on the sidewalls of the subject tyres are not suitable for using on Tata Hitachi Loader. 12. Learned authorised Representative submits that as per information obtained through email correspondence from Indian subsidiary of the manufacturer of imported tyres viz. Hankook India LLP and based on certificates provided by importer, technical write-up uploaded by the importer, website description of Force Gurkha, web site description of Hankook and based on detailed analysis of specifications of imported tyres, the tyres imported by the appellant are not classifiable under CTH 4011 8000 as claimed by the importer. He submits that he classification arrived by the department viz 4011 1010 refers to New pneumatic tyres, of rubber, of a kind used on motor cars (including station wagons and racing cars); so this heading not only covers passenger car tyres but also tyres for station wagons and racing cars; the tyres imported by the appellant are used for Sport utility vehicles like Force Gurkha, Mahindra Thar, Jeep etc which fall in the category of motor cars; hence, the tyres imported by the appellant merits classification under 4011 1010 only; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates issued by various purchasers on the use of impugned tyres. They also placed on record literature available on the website of Best Drive which states that: HT tyres are not intended for off-road performance. Rather, the tread pattern is typically designed to deliver a smooth, comfortable ride and good on-road performance. HT tyres are not specifically designed for puncture resistance across the sidewall and tread area. This makes them more susceptible to staking and deflation when driving over less predictable, off-road terrain. Unsealed tracks and trails can be slippery, which makes AT or MT tyres a better choice in this instance. 15. From the above, it appears that the impugned tyres are not normal tyres. This fact is also not disputed by the Department. It is the contention of the Department that the tyres are claimed to be used in in vehicles like Gorkha Force Thar etc. which are vehicles for on-road use only and moreover vehicles used for racing etc. are also classified under motor vehicles and therefore, the impugned tyres are rightly classifiable under CTH 40111010. On perusal of the literature made available on record and the clarifications given by some purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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