2012(03)LCX0274

IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD [COURT NO. II]

S/Shri M.V. Ravindran, Member (J) and B.S.V. Murthy, Member (T)

G.K. Exports

Versus

Commissioner of Customs, Jamnagar

Final Order Nos. A/4U-412/2012-WZB/AHD, dated 26-3-2012 in Appeal Nos. C/355-356/2007

Cases Quoted -

M.U. Traders v. Commissioner - 2009(11)LCX0134 Eq 2010 (252) ELT 0574 (Tribunal) - Referred [Paras 6,9]

Commissioner v. Galaxy Pet Packaging Syntax - 2003(07)LCX0388 Eq 2010 (255) ELT A020 (S.C.) - Referred [Para 5]

Galaxy Pet Packaging Syntex v. Commissioner - 2007(12)LCX0301 Eq 2009 (233) ELT 0358 (Tribunal) -Referred [Paras 4,5]

Iqbal Valimohamed Sorathia v. Commissioner - 2005(08)LCX0064 Eq 2006 (196) ELT 0303 (Tribunal) - Referred .. [Para 4]

Namaskar Enterprises v. Commissioner - 2003(09)LCX0325 Eq 2003 (158) ELT 0235 (Tribunal) - Referred [Para 4]

Parshwanath Traders v. Commissioner - 2002(11)LCX0291 Eq 2002 (149) ELT 1085 (Tribunal) - Referred [Para 4]

Royal Tyre Co. v. Commissioner - 2005(10)LCX0365 Eq 2006 (205) ELT 0321 (Tribunal) - Referred [Para 4]

Advocated By -

Shri P.P. jadeja, Consultant, for the Appellant.
Shri R. Srova, AR,for the Respondent.

[Order per : M.V. Ravindran, Member (J)]. -

These appeals are directed against OIA Nos. 49 & 50/2007-KDL/Cus/Commr(A)/AHD, dated 9-5-2007 and OIA Nos. 47 & 48/2007- KDL/Cus/ Commr(A)/AHD, dated 10-5-2007.


2 Since the issue involved in these appeals is raising the same question, they are being disposed by a common order.


3 The relevant facts that arise for consideration are that the appellant herein had imported consignments of used tyres and declared them as "old & used tyres (not fit for use on fast moving vehicles or heavy loaded vehicles; to be used only tractor trolley, horse cart, camel cart or bullock cart)". They classified the said goods under SH 4012 20 90 and claimed free import. The consignment was examined by the Committee, and in their report opined that the consignment consisted of old and used pneumatic tyres for truck, buses and LCV and approximately 35% to 45% of the consignment can be used as such on Indian roads and remaining cannot be used as such. The consignment was seized and Show Cause Notices were issued for reclassification and also for confiscation of the goods due to import restriction, re-valuation and imposition of fine and penalty. The adjudicating authority classified the product as to fall under CH No. 4012 20 10/20 and also re-valued the same and imposed fine and penalty. Aggrieved by such an order, the appellants preferred an appeal before first appellate authority. The first appellate authority, while upholding the re-classification of the goods imported by the appellant under CH 4012 20 10/20, set aside the order as regards valuation and remanded the matter only for the purpose of valuation aspect as per the provisions of Customs Act, 1962 and for re-visit of the imposition of penalty and redemption fine and he set aside the separate penalty imposed on the proprietor and Power of Attorney holder. The appellants are in appeal against the order of first appellate authority to the extent of classification of the product imported. Revenue is not in appeal against the said impugned order in any respect.


4. Heard the LD. Counsel. LD. Counsel submits that the classification of the product under CSH 401220.10/20 is incorrect as the goods which are imported are used pneumatic tyres and would fail under CSH 4012 20 90. He would submit that in an identical situation, this Bench in the case of Galaxy Pet Packaging Syntax v. CC - 2007(12)LCX0301 Eq 2009 (233) ELT 0358 (Tri.-Ahmd.), has held that the tyres imported found to be old and not capable to be used as motor vehicle tyres are liable to be classified under Tariff Heading No. 4012 20 90 and no special licence is required. He would take us through the various decisions :

(i) Royal Tyres Co. v. CC (P), Ahmedabad - 2005(10)LCX0365 Eq 2006 (205) ELT 0321 (Tri.-Del.)

(ii) Iqbal Valimohmed v. CC - 2005(08)LCX0064 Eq 2006 (196) ELT 0303 (Tri.-Mum.)

(iii) Namaskar Enterprises v. CC - 2003(09)LCX0325 Eq 2003 (158) ELT 0235 (Tri.-Del.)

(iv) Parshivanath Traders v. CC - 2002(11)LCX0291 Eq 2002 (149) ELT 1085 (Tri.-Del.)

5 It is also his submission the judgment of the Tribunal in the case of Galaxy Pet Packaging Syntex was upheld by Hon'ble Apex Court as reported at 2003(07)LCX0388 Eq 2010 (255) ELT A020 (S.C.). It is also his submission that they have declared the product imported by them i.e. tyres as can be used for animal driven vehicles and there are two views possible on that and the view which is in favour of the assessee should guide the classification.


6 Ld. DR, on the other hand, would submit that the judgment of the Tribunal in the case of M.U. Traders, [2009(11)LCX0134 Eq 2010 (252) ELT 0574 (Tri.-Ahmd.)] on an identical situation, has held the classification of the product as 4012 20 10/20 of Customs Tariff Act, 1975 as in this case, the tyres are held to be usable directly without any further activity on the said tyres.


7 We have considered the submissions made at length by both sides and perused the records.


8 The issue to be decided in this case is only the classification of the goods imported by the appellant in these appeals whether have to be classified under CSH 4012 2010/20 as held by the lower authorities or 4012 2090 as claimed by the assessee.


9 The factual matrix of this case is that the consignment of old and used tyres were examined by the experts and they held a view that 35% to 45% of the tyres are usable as such and the balance are not usable as such. After the receipt of Committee's report, 100% examination was carried out by the lower authorities, the lower authorities have identified the exact number of old and used tyres which can be used as such without any further process, while holding that balance number of tyres in both the appeals cannot be used as such. In our considered view, in both these appeals, 100% examination has revealed that the number of tyres that can be used as such, merits the classification under CSH No. 4012.2010/20, as has been held by this Bench in the case of M.U. Traders (supra). The judgment relied upon by the ld. Counsel would not carry his case any further as in those cases, there was absence of 100% examination of old and used tyres and the correct exact quantity which can be used as such. Per contra in this case, 100% examination has revealed that certain quantity of tyres can be used as such, we find that the said tyres merits the classification under CSH 4012.2010/20 as correctly upheld by first appellate authority. At the same time, we find both the lower authorities have classified the entire consignment under CSH No. 4012.2010/20. This, in our view, is incorrect as the 100% examination has revealed that only specific quantity of tyres are usable as such, in our view the specific number of tyres as indicated in both the appeals have to be classified under CSH No. 4012 20 10/20. As regards balance number of tyres in both the appeals which can be used as such, they have to be classified under CSH 4012 20 90, as has been declared by the assessee.


10 Having decided the classification issue, we hold that the impugned order is modified to the extent as indicated hereinabove as regards classification, while maintaining the remand terms of first appellate authority as un-altered. As the valuation aspect is remanded, the adjudicating authority, while deciding the issue on de novo proceedings, will keep in mind our above order of classification and arrive at a conclusion.

11 The appeals are disposed as indicated hereinabove.

(Operative portion of the order pronounced in Court)

Equivalent 2013 (298) ELT 0560 (Tri. - Ahmd.)