KADRI ENTERPRISE Vs. UNION OF INDIA

JUDGEMENT

(1.) By this application, the applicant seeks a direction to the opponent No.3, Assistant Commissioner of Customs, Mundra to permit the provisional clearance of import of old and used tyres made by the applicant under Bills of Entry No.17 and 18 of 2015 dated 16.03.2015.

(2.) The applicant herein is the original petitioner, who has filed the captioned petition challenging the order dated 22.04.2015 passed by the opponent No.3 whereby, the applicant's request for assessment of Bills of Entry No.17 and 18 of 2015 dated 16.3.2015 has been rejected on the ground that the Ministry of Environment and Forests has issued an Office Memorandum dated 24.11.2014 and directed that old and used tyres for direct use should be treated as "prohibited goods" instead of "restricted goods". It is the case of the applicant that if under the EXIM policy, the import of used pneumatic tyres is permissible under the restricted or free category, the customs authorities cannot refuse assessment and clearance of such goods on the ground that such import not being permissible under some office memorandum issued by the Ministry of Environment and Forests.

(3.) Mr. Devan Parikh, Senior Advocate, learned counsel for the applicant submitted that the consignment sought to be imported and as imported has all along been described as "old and used discarded tyres not fit for fast moving vehicles and heavy loaded vehicles". Such import is of old and used tyres for re-use since the said tyres have a 55% residual life and such old tyres have been regularly imported since the past more than a decade all over the country by various importers. It was submitted that the import of the consignment in question falls under Chapter 40 of the Customs Tariff Act, 2014-15. The attention of the court was invited to Head Note-6 of Chapter 40 to point out that the same provides that "6. For the purposes of heading 4004, the expression "waste, parings and scrap" means rubber waste, parings and scrap from the manufacture or working of rubber and rubber goods definitely not usable as such because of cutting up, wear or other reasons." It was submitted that only the imports of "waste pneumatic tyres" would be covered by the said entry 4004 00 00 which reads as "Waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom". Whereas the classification of the consignment in question, that is, old and pneumatic tyres would be covered by entry 4012 20 90 under the residual entry "others" of the main entry "4012" which relates to retreaded or used pneumatic tyres of rubber, solid or cushion tyres, tyre treads and tyre flaps of rubber and which are freely importable. However, the Customs Department has taken a view that such tyres would fall under entry 4012 2010 or 4012 2020, that is imports whereof are restricted and which would therefore require a licence for such import and in case the import is without licence, the same is subject to fine in lieu of confiscation.