2011 (10) TMI 380 - HC - Customs

Advance licence - according to the Petitioners, tyres with multiple cuts and/or shredded tyres are restricted items which require a licence from the Director General of Foreign Trade - public Notice 22/2009 was issued to provide a procedure for drawal of samples and testing of import consignments - In the present case, it has been stated that no live consignment of the Petitioners is pending and the Petitioners are raising academic issues, in order to preempt the Customs Authorities from implementing the required tests prescribed for Hazardous cargo under Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008 - Clearly any movement of hazardous wastes from an area under the jurisdiction of one country to an area under the jurisdiction of another country is covered by the expression transboundary movement - Held that The Rules have been made in the public interest and with a view to ensure that the import, management and handling of hazardous wastes does not result in a deleterious effect on public health and the environment - Decided against the assessee

Summary

Issues Involved:
1. Requirement of permission/license from the Ministry of Environment and Forests for importing one cut tyres and/or shredded tyres.
2. Requirement of a license from the Director General of Foreign Trade for importing tyres with one cut in bead wire.
3. Procedure for clearance of consignments containing one cut tyres and/or shredded tyres.

Issue-wise Detailed Analysis:

1. Requirement of Permission/License from the Ministry of Environment and Forests:
The Petitioners operate a factory manufacturing carbon black, fuel oil, and other products, using used cut rubber tyres as raw material. They claim that under customs tariff rules, import of used tyres with one cut falls under Open General License (OGL) and is freely importable, whereas multiple cut and/or shredded tyres require a license from the Director General of Foreign Trade. The Petitioners possess a license issued on 20 April 2011, permitting import through Nhava Sheva Port, subject to conditions including monitoring by the Maharashtra State PCB and ensuring the import is not contaminated with other waste. However, the First and Second Respondents (Chief Commissioner of Customs and Commissioner of Customs) have obstructed the import, citing the need for permission under the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008. The court noted that the Petitioners had themselves applied for and received permission from the Ministry of Environment and Forests for importing 20,000 MT of tyre scrap, making their claim that no such permission is needed baseless. The court emphasized that Rule 16 of the Hazardous Wastes Rules mandates permission from the Ministry of Environment and Forests for the import of hazardous wastes specified in Schedule III, which includes waste pneumatic tyres.

2. Requirement of a License from the Director General of Foreign Trade:
The Petitioners sought a direction that the First and Second Respondents should not insist on a license from the Director General of Foreign Trade for importing tyres with one cut in bead wire, which are freely importable. The court clarified, based on the affidavit from the First and Second Respondents, that used rubber tyres with one cut are freely importable under OGL, whereas shredded tyres are restricted and require a license. The license issued to the Petitioners allows the import of tyre scrap for manufacturing biofuel oils and carbon black, subject to conditions. No further directions were deemed necessary by the court.

3. Procedure for Clearance of Consignments:
The Petitioners requested that the First and Second Respondents clear consignments by following the public notice dated 21 April 2009, which outlines the procedure for sampling and testing import consignments. The court noted that the public notice facilitates systematic drawal of samples and testing but also acknowledges the need for special testing for hazardous cargo. The affidavit from the Respondents explained that samples are drawn and tested to ensure compliance with the Hazardous Wastes Rules, with goods released based on test reports from an approved laboratory. The court found no fault with this procedure and saw no reason to grant the relief sought by the Petitioners.

Conclusion:
The court dismissed the Petition, stating that the Petitioners' contention that no permission from the Ministry of Environment and Forests is required is fallacious. The court emphasized the necessity of careful scrutiny by the Respondents to ensure the import of hazardous wastes complies with legal requirements, protecting public health and the environment. The provisions of the Hazardous Wastes Rules must be strictly enforced. No order as to costs was made.