- (1.) THE appeal by the Commissioner of Customs and Central Excise, NOIDA arises from an order of the Customs, Excise and Service Tax Appellate Tribunal dated 16 May 2014 ( : 2014 (307) E.L.T. 598 (Tri. - Del.)). In the appeal which was filed by the department against an order of the Commissioner (Appeals), the Tribunal declined to interfere with a direction by which the goods were permitted to be redeemed for home consumption on payment of a redemption fine of Rs. 8 lacs, deleting a condition of re -export which was imposed by the Adjudicating Officer. The assessee initially filed a writ petition under Article 226 of the Constitution, seeking enforcement of the order passed by the Tribunal. When the petition came up, the Court was informed on 10 July 2014 that the revenue intended to file an appeal against the order of the Tribunal. The appeal having been filed, both the appeal and the writ petition have been heard together. Since the writ petition seeks to enforce the order of the Tribunal which has been questioned by the Revenue in appeal, it would be convenient to deal with the appeal in the first instance.
(2.) THOUGH , several questions of law have been formulated by the revenue, the following question has been pressed at the hearing: - "3. Whether the Tribunal has committed an error of law in accepting and upholding the clearance for home consumption allowed by the Commissioner (Appeals) of goods otherwise prohibited for clearance for home consumption in absence of valid BIS certificate with reference to the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009, read with 2.2 of the Foreign Trade Policy and General Note 2A of the import policy regarding mandatory compliance with regard to BIS certification as per Schedule III to the import policy."
(3.) THE assessee filed a Bill of Entry on 5 June 2013 for the clearance of goods which were declared as "New Passenger Car Radial Tyres of mixed sizes" under a Bill of Lading dated 12 May 2013. The goods were valued at USD 72375.00 (CF) and were imported from M/s. Hussain and Lucky General Trading LLC, Dubai, UAE. The total assessable value was declared to be Rs. 40.87 lacs with duty payable of Rs. 11.79 lacs. The goods were governed by the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009 read with the C.B.E. and C. Circulars/Instructions dated 29 November 2011 and 15 December 2011 and a clarification of 12 July 2013. Paragraph 3 of the 2009 Order provides as follows: - "Prohibition regarding manufacture, sale, distribution etc. - (1) No person shall by himself or through any person on his behalf, manufacture, import, store for sale, sell or distribute Pneumatic Tyres which do not conform to the Specified Standard and which do not bear the Standard Mark of the Bureau on obtaining Certification marks license; The Additional Commissioner in his order dated 17 July 2013 noted that the first check examination report found that a certificate of the Bureau of Indian Standards was available only in respect of a consignment of Nexon brand tyres but that was valid only until 30 December 2012. No BIS certificate was available in respect of the tyres of other brands. The Additional Commissioner also noted that on scrutiny of the import documents, it was found that no invoice of the manufacturer or evidence for the purchase of tyres from Nexon or from any other manufacturing company had been submitted. The importer was found to be a trader and not the Original Equipment Manufacturer (OEM) or an entity authorised for the fitment of tyres on vehicles. On these facts, the Additional Commissioner ordered confiscation of the goods under Section 111(d) of the Customs Act, 1962. However, an option was furnished under Section 125(1) of the Customs Act for the payment of a redemption fine of Rs. 8 lacs in lieu of confiscation and for the re -export of the goods. A penalty of Rs. 5 lacs was also imposed.;