Custom, Excise & Service Tax TribunalCc & Ce & St, Noida vs M/S. Aban Exim Pvt. Ltd on 16 May, 2014IN THE CUSTOMS, EXCISE AND SERVICE TAX

APPELLATE TRIBUNAL, NEW DELHI

COURT NO. III



Customs Appeal No.  50048/2014-CU(SM)

Customs Misc Application No. 51989/2014



[Arising out of Order-In-Original No. 21/ADC/CUS/2013 dated 17.07.2013 passed by CCE, Noida]



For approval and signature:

Honble Ms. Archana Wadhwa, Judicial Member



1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 
No
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes


CC & CE & ST, Noida				 	Appellant



      Vs.



M/s. Aban Exim Pvt. Ltd.				RespondentsCoram:   Honble Ms. Archana Wadhwa, Judicial Member	



Appearance:Shri R.K. Mishra, AR for the Appellant

Shri Piyush Kumar for the Respondent 



Date of Hearing:  03.04.2014    

    			 Date of Decision: 16.05.2014



FO ORDER NO.__52158/2014_ 



Per Ms. Archana Wadhwa:Being aggrieved with the order passed by the Commissioner (Appeals) revenue has filed the present appeal.2.	The respondent, an importer filed a Bill of Entry No. 2334224 dated 05.06.13 through their CHA M/s. Praveen Ahuja seeking clearance of the imported goods (imported from M/s. Hussain and lucky General Trading, LLC, Dubai, UAE) declared as New Passenger Car Radial Tyres of mixed sizes.  As per the import documents, the party imported these goods which were stuffed in 03 containers & were claimed to be classifiable under CTH 40112090 attracting duty structure @ 10%+ 12% +2%+1%+4%.  Total assessable value was declared to be Rs. 4087838/- and total duty payable was Rs. 1179417/-.3.	As per EDI Systems direction for 100% examination on first check basis, to verify the make, model, type, sizes and BIS Certification/requirement.  On examination in the presence of CHAs Representative & AC (Shed), the quantity, brands and sizes of the tyres were found as declared in the import documents.4.	In terms of the guidelines prescribed in the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009, CBEC Circulars/ Instructions dated 29.11.2011, 15.12.2011 and Public Notice No. 01/2012 dated 24.01.2012 issued by the Commissioner of Customs, ICD, TKD, Delhi which reads as under:-No person shall by himself or through any person on his behalf, import, store for sale, sell or distribute imported tyres (Which include pneumatic tubes) that do not conform to the specified standards and that do not bear the BIS standard Mark except imported by Original Equipment Manufactures (OEM) and / or their authorized companies for fitment on vehicles or after sales, meant for exports.5.	The AC (Shed) vide his First Check Report, reported that as regards BIS Certificate, Xerox copy of BIS certificate for Nexon Brand (Given to M/s. Nexen Tyre Corporation, Yusan-dong, Yangsan-si, South Korea) only submitted valid upto 13.12.2012 along with the import documents does not contain all the attachments to License No. 4019041 as endorsed by BIS, New Delhi from time to time and no reference has been made in the said certificate about the importer with regard to other brands, no BIS Certificate is provided.6.	The subject imported goods are free to import as per the Foreign Trade Policy and governed by the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) order, 2009 read with CBEC Circulars/Instruction dated 29.11.2011, 15.12.2011 and CBECs further clarifications that the importability of tyres and applicability of BIS in respect of Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) order, 2009, is applicable to newly manufactured tyres and tubes and with the implementation of the (Quality Control ) Order, 2009 for pneumatic Tyres and Tubes for Automotive Vehicles with effect from 13.05.2011, no such tyres can be imported in the country without BIS Marking (except certain exemption provided in the Order).7.	The said imported goods being new Passenger Car Radial Tyres of mixed sizes can be imported only against BIS Certification as per Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) order, 2009.  For the import & clearance of the subject goods, the importer did not submit the valid BIS Certification and also did not establish as to be covered under the exempted category of BIS Certification.8.	Since the impugned goods under import clearance have been imported in contravention of the provisions of the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) order, 2009 issued underSection 14of the Bureau of Indian Standard Act, 1986, they are liable for confiscation underSection 111(d)of the Customs Act, 1962.9.	The Adjudicating Authority after going through the facts of the case on records, ordered for the confiscation of the subject goods underSection 111(d)of the Customs Act, 1962.  However, he gave an option underSection 125 (i)of the Customs Act, 1962 to pay fine for Rs. 800000/- in lieu of confiscation and redeem the said goods for re-export.  He has also imposed a penalty of Rs. 5,00,000/- upon the party underSection 112(a)of the Customs Act, 1962.10.	Being aggrieved with the impugned Order in original, the party preferred an appeal with the Commissioner (Appeals), Customs & Central Excise, Noida, who after going through the facts of the case observed as under:I agree with the appellants contention that the adjudicating authority has not given any reasons for not giving an option for redemption of the consignment against redemption fine  I also agree with the appellant that the import of Pneumatic tyres is neither prohibited under theCustoms Act, 1962, norForeign Trade (Regulation & Development) Act, 1992or Automotive Vehicle (Quality Control) Order, 2009 and therefore even if the import of some of the Tyre was contrary to the Order, 2009, the appellant is entitled to redemption thereof on payment of appropriate Redemption Fine adjudged by the learned Additional Commissioner in terms of the provisions ofSection 125of the Customs Act, 1962.  Redemption with the condition of re-export is very harsh penalty.  Generally redemption fine is imposed in cases where the importer has tried to violate law for deriving the profit and the purpose of redemption is to take away that profit from such import.  Further the imposition of the penalty is resorted to make it prohibitively expensive for importer so that he does not try it again in the future.  In the present case, I find that R.F. and penalty have been imposed but the imported goods have not been allowed to be released in the domestic market for reasons not explained in the impugned order.  It has to be acknowledged that the imported goods have been accompanied by a certificate of the origin, which has been issued by an agency, which is authorized.  The said certificate certify the origin of the imported goods from their respective countries.  Some of the brands of the imported goods are renowned internationally.  Therefore the imported goods cannot be treated as of substandard quality.  I, therefore find that the adjudicating authority has travelled a bit too far in the matter & his order regarding re-export order of imported goods is arbitrary.  The imposed goods are restricted but that does not mean that they cannot be allowed to be brought in India at all.  In this regard I would like to refer to judgement of Delhi High Court in the case of CCE, Delhi-IV Vs. M/s. Achiever international (2012-TIOL-428-HC-DEL-CUS)11.	He accordingly converted the impugned order of original adjudicating authority from re-export to clearance for home-consumption at the same redemption fine.12.	The revenue in their memo of appeal have mainly contested that the BIC certificate was valid only upto 31.12.2012 and had expired, declining the import of the impugned imported goods.  However the quantum of redemption fine stands assailed on the point that there was no determination of the market prices of the goods confiscated.13.	I find no merits in the above contention.  The issue stands dealt by Commissioner (Appeals) in details and he has passed the impugned order by following the precedent decision of the Tribunal.  As regards quantum of redemption fine, the Revenue has not shown as to how the quantum of redemption fine of Rs. 8 lakhs imposed on the appellant is on the lower side.    Revenue has also not referred to margin of profit.  I find that Commissioner (Appeals) adopted the same quantum of redemption fine as was imposed by the original adjudicating authority and has simplicitor converted the impugned order of re-export into home consumption for clearance.14.	In view of the above, I find no justification for interfering in the impugned order of Commissioner (Appeals).  Revenue appeal is accordingly rejected.(Pronounce in the open Court on.)



    (Archana Wadhwa)

                                                       Member (Judicial)



Jyoti*





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