M/S Imrose Traders vs Commissioner Of Customs, Kandla

Appeal No.C/12252,12253/2014-DB [Arising out of OIA No.212 to 213/2014/Cus/Commr(A)/KDL, dt.28.03.2014, passed by Commissioner (Appeals) of Customs, Ahmedabad]

1. M/s Imrose Traders, 2. Mr. Mohammed Iqbal, Proprietor Appellants

Vs

Commissioner of Customs, Kandla Respondent

Represented by:

For Appellant: Shri Paritosh Gupta, Advocate For Respondent: Shri Jitendra Nair, Authorised Representative.

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)

Date of Hearing/Decision:18.03.2015

Order No.A/ 10247-10248/2015, dt.18.03.2015

Per: P.K. Das

1. The relevant facts of the case, in brief, are that Appellant No.1 M/s Imrose Traders, a Proprietaryship Firm and Mr.Mohammed Iqbal, a Proprietor imported a consignment of 60 Tonnes of used Aircraft Tyres at Old Mundra Port on 27.02.2012. A Show Cause Notice dt.02.05.2012 was issued, proposing that the imported tyres should be ordered for re-export and to enhance the declared value. It has also proposed to impose penalty on the Proprietaryship Firm as well as on the Proprietor. The Adjudicating authority rejected the assessable value of Rs.3,69,161.00 and re-determined the value of the imported tyres as Rs.21,97,741.00. It has also confiscated the imported goods and imposed a redemption fine of Rs.5 lakhs and ordered for re-export of the goods. It has also imposed penalty of Rs.2 lakhs and Rs.1 lakh on the Proprietaryship firm and its Proprietor respectively. By the impugned order, the Commissioner (Appeals) reduced the redemption fine to Rs.1,75,000.00 and the penalties were reduced to Rs.1 lakh and Rs.50,000.00 on the Proprietaryship firm and its Proprietor respectively.

2. The main submission of the learned Advocate for the Appellants is that the Tribunal on the identical situation, in the case of M/s Universal Trading Company & Others Vs Commissioner of Customs, Kandla by Final Order No.A/11340-11345/WZB/AHD/2013, dt.20.10.2013, allowed the appeal of the Appellant. He submits that in that case, the imported items were Used Tyres of Motor Vehicles and in the present case, the imported items are Used Aircraft Tyres and both are imported for use in the Animal Driven Vehicles (ADV). It is submitted that the used Aircraft Tyres can be used in ADV as is evident from the letter dt.16.05.2014 of M/s Indian Rubber Manufacturers Research Association (IRMRA). He also drew the attention of the Bench to the IRMRA report as reproduced in the impugned order that the imported tyres are not designed for ADV. It is implied that it may not be designed, but it can be used for ADV. He submits that the Adjudicating authority proceeded on the basis of the examination report in the case of M/s Universal Trading Company & Others (supra) and in view of the decision of the Tribunal in the case of M/s Universal Trading Company & Others, the instant goods may be allowed to be released.

3. On the other hand, the learned Authorised Representative for the Revenue submit that the letter dt.16.05.2014 was not placed before the lower authorities. It is also submitted that the Commissioner (Appeals) has given a detailed finding that the goods are hazardous waste. He further submitted that the Commissioner (Appeals) proceeded on the basis of the report of IRMRA, where they have said that these goods cannot be used for ADV, hence, the documents placed by the Appellants has no relevance. So, the Adjudicating authority rightly allowed re-export of the goods after payment of fine and penalty.

4. After hearing both the sides and on perusal of the records, we find that the Tribunal in the case of M/s Universal Trading Company & Others (supra) in the context of import of old and used automobile tyres, allowed the release of the goods, after considering the various facts whether the imported tyres can be used for motor vehicles as such or after re-treading or merely usable by the ADV etc.

5. On perusal of the impugned order, we find that Hazardous Waste is defined under Rule 2(1) of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008 (in short Rules 2008). Commissioner (Appeals) observed that while taking into the decision of the clearance of the old and used tyres, it should be taken into concern of the State Pollution Control Board to enable them to send their comments and observations, if any, to the Ministry of Environment and Forest within a stipulated period. In the present case, we do not find any comments from the State Pollution Control Board or any other authority. The main contention of the Appellant is that the subject imported goods i.e. old and used Aircraft tyres can be used for fitting in Animal Driven Vehicles. The Tribunal in the case of M/s Universal Trading Company & Others (supra) had also considered this issue. In our considered view, the Appellant should be given an opportunity to place the evidences in support of their contention that the imported goods can be used for fitting in ADV and other materials. The learned Advocate also made detailed submissions on the enhancement of the valuation.

6. We find that it is appropriate that the matter should be re-examined by the Adjudicating authority in the light of the IRMRAs letter dt.16.05.2014 and other materials as placed by the learned Advocate including the valuation of the goods.

7. In view of the above discussion, we set aside the impugned order. The matter is remanded to the Adjudicating authority to decide afresh, after considering the submissions of the Appellants. We make it clear that the order is passed without expressing any opinion on the merits. Both the appeals are allowed by way of remand.

8. At this stage, learned Advocate submits that the goods are lying since 3 years and therefore, the certain directions may be given. We direct the Adjudicating authority to decide the matter as expeditiously as possible.

(Dictated & Pronounced in Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial)

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