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TMI Blog2021 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... 40111010 as tyres meant for motor cars and cannot be classified under CTH 40118000 and accordingly are "restricted" and a license as per DGFT Notification No.12/2015-2020 dated 12.06.2020, is required for import. A Show Cause Notice dated 09.10.2020, was issued to the appellant seeking reclassification of impugned goods under CTH 4011 1010 and proposing confiscation and penalty. Deputy Commissioner, vide Order-in-Original No.101/ 2020 dated 07.11.2020, confirmed the allegations. On an appeal filed by the appellants, Commissioner (Appeals) rejected the appeal filed by the appellants. Aggrieved by the order of the Commissioner (Appeals), the instant appeal was filed. 3. Mr. Deepak Parikh, Sr. Advocate and Mr. GB Eswarappa, Advocate, appearing for the appellants, submits that on examination of the tyres, it was demonstrated that the entries made in the Bill of Entry tallied completely with the goods as per the examination report and there was thus no question of any misdeclaration about nature of goods; information supplied by the respondents, in reply to an RTI application filed by the appellant, indicate that the classification entered by the appellants was correct; during the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the main heading i.e. various kinds of vehicles; clearly, therefore, "tyres for motor cars" is only restricted to normally understood motor cars that are used for plying on the road; therefore, a tyre used exclusively only for off road and which cannot be used for on roading ought to be classified under CTH 4011 90 00; in some cases, it is also used for mining purposes and, therefore, may also merit classification under CTH 4011 80 00; it certainly is not as normal tyres meant for motor vehicle; they do not serve the normal and dominant purpose of use of a motor car on the road. The fact that tyres in question are MUD terrain tyres designed for predominant and primary use in rocky forest, etc. terrain and for off roading as more than adequately established by the facts on record. 8. Learned Counsel submits that it is even observed in the order in original that "further specifications found on side walls of the subject goods indicate that the subject goods are suitable for use on SUV and passenger motor cars for off roading experience which is confirmed by the Indian Subsidiary of the manufacturer of the imported tyres i.e. Hankook Tyres LLP India." Certificates of the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and submits that the facts of the case are well analysed by the adjudicating authority in the OIO; adjudicating authority has analysed the markings (specifications) /labels found on sidewalls of tyres (as noticed during examination of goods) and on a detailed analysis , has observed that the specifications found on sidewalls of the tyres indicate that the subject goods are suitable for use on SUVs and passenger motor cars; email correspondence with the Indian subsidiary of the manufacturer of such tyres viz. Hankook Tires LLP India, indicates that the said Indian entity vide their mail dated 5/10/2020 have stated that the tyres with these specifications are generally used in SUVs like Mahindra Thar etc; the said Indian subsidiary viz Hankook Tires India LLP, vide the said mail also furnished details of identical goods imported by them wherein the classification adopted for such tyres was found to be CTH 4011 1010. 11. Learned authorised Representative submits that the appellant has declared in e-sanchit that these tyres are used for off the road vehicles such as Force Gurkha & as front tyres for mining vehicles such as Tata Hitachi loader; Based on the information obtained fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t imports. 13. Heard both sides and perused the records of the case. The appellant argues that the tyres in dispute are not normal pneumatic tyres; they are used in cars used for off-road purposes such as Rocky Forest and Mud-Terrain and the dominant purpose is not for used on-road. The appellants also submit that Ministry of Industry considers the tyres in question are different from the kind used in normal course; the BIS standards also recognised that tyres are not normal tyres. The appellant submits that the clarification issued by the authorized importers i.e M/s Hankook Tyres should not be relied upon as they are in direct competition with the appellants and hence, the submission cannot be relied upon. They also rely upon the judgment of Larger Bench in 2017 (350) ELT 107; Hon'ble Supreme Court 1997 (92) ELT 141. We find that the Department relies upon the e-mail correspondence with M/s Hankook Tyres which clarifies that the tyres imported by them are generally used in SUVs like Mahindra Thar etc. and the website of Tata Hitachi wherein it is stated that the specification for front tyres for Tata Hitachi loader is front tyre standards is 9-16-16PR and that PR ratings for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically designed for normal on-road purposes. Only because the tyres can be fitted in to the vehicles like Force Gorkha or Thar etc. they cannot be classified as tyres for normal vehicles for on-road use. We also find that the certificate issued by the Ministry of Industry supports this contention. We find that the Department's reliance on a clarification given by a competitor and that too on an e-mail cannot be considered as clinching evidence to rely upon. Moreover, in the impugned import, the supplier is not M/s Hankook and the comparative description, if any, of the impugned tyres and those imported by M/s Hankook India Ltd. is not given. Under the circumstances, the lower authorities cannot rely on such evidence. It is not the case of the Department that normal on-road vehicles are supplied with the impugned tyres by the original equipment manufacturers. The impugned tyres are used for replacing the 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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