2011 (3) TMI 533 - AT - Customs

Confiscation - Penalty - 100% EOU - There is no evidence on record which indicated that the Tamilnadu State Pollution Control Board were made aware of the arrangement for getting the work of washing done through another unit in Gujarat who was having facility as well as necessary clearance from the Gujarat Pollution Control Board - There is no dispute that the 100% EOU who imports material can get the processes done through a jobber following the procedure prescribed therein - Held that the goods are not prohibited goods for import by the 100% EOU and that there is no mis-declaration of goods imported by the respondents, the question of confiscation of the goods and imposition of penalty does not arise - Decided in favour of the assessee

Summary

Issues:
- Appeal against the order of the Commissioner (Appeals) regarding import of plastic waste and scrap by a 100% EOU for manufacturing flakes of plastics for export.
- Confiscation of goods by the original authority due to lack of permission for washing processes.
- Dispute over whether the imported goods were prohibited or restricted items.
- Consideration of Pollution Control Board's advice for re-export.
- Compliance with environmental protection requirements for import of scrap.
- Validity of conditional offer of redemption and export of goods.
- Jurisdiction of customs authorities over re-export advice by Pollution Control Board.
- Authority of 100% EOU to import restricted items for manufacturing export goods.
- Permissibility of getting processes done through a jobber by the 100% EOU.

Analysis:
- The appeal was made by the Department against the order of the Commissioner (Appeals) regarding the import of plastic waste and scrap by a 100% EOU for export manufacturing. The original authority had confiscated the goods due to the lack of permission for washing processes at the premises. The Commissioner (Appeals) overturned this decision, leading to the Department's appeal.
- The dispute centered around whether the imported goods were prohibited or restricted items. The EXIM policy allowed for the import of pet bottles and scrap during the relevant period, with other materials being considered as restricted items, not prohibited.
- The Pollution Control Board advised re-export of the goods due to the absence of washing facilities at the EOU's premises. However, the EOU had arrangements with a unit in Gujarat for washing operations, approved by the Gujarat Pollution Control Board. The original authority's decision to order re-export solely based on the Pollution Control Board's advice was challenged.
- The Tribunal noted that the EOU was permitted to import not only pet bottles and scrap but also articles of plastics as per the LOP issued. Compliance with environmental protection requirements for importing scrap was crucial.
- The Tribunal found that the EOU's arrangement for processing through a jobber in Gujarat, with necessary permissions, justified setting aside the original authority's order for re-export. Importantly, the goods were not considered prohibited for import by the EOU.
- The Tribunal concurred with the Commissioner (Appeals) that there was no mis-declaration of goods imported and that confiscation of goods and imposition of penalties were not warranted.
- Ultimately, the Tribunal rejected the appeal, finding no valid reasons to interfere with the Commissioner (Appeals) order, emphasizing the EOU's entitlement to import restricted items for manufacturing export goods and the permissibility of getting processes done through a jobber.