2013 (7) TMI 840 - HC - Customs

Import of restricted goods without a licence - Waste pneumatic tyres - Pollution Control Board to determined goods to be not hazardous - Tribunal referring the report of Pollution Board ordered release of confiscated goods - Held that - Report of Pollution Board speaks nothing on the absence or presence of any hazardous material or the likelihood of its giving out any hazardous material when put to use even after re-treading - Report merely referred to the earlier two reports as well as the physical condition of the tyres imported - report could not be accepted as categorically speaking on the condition of the tyres as required for the purpose of their release - Matter remitted back for fresh adjudication - Decided in favour of Revenue.

Summary

Issues Involved:
1. Legality of the CESTAT order dated 17.04.2012 overriding its own previous order.
2. Appropriateness of CESTAT directing the department to get the goods examined by the Pollution Control Board.
3. Correctness of CESTAT's direction to clear the goods without evidence that they are not hazardous waste.

Issue-wise Detailed Analysis:

1. Legality of the CESTAT order dated 17.04.2012:
The High Court examined whether the CESTAT's order dated 17.04.2012 was legal, given that it overrode its previous order which mandated a reference to the Pollution Control Board to ascertain if the imported goods were hazardous waste. The court noted that the Tribunal initially directed the authorities to obtain a report from the Pollution Control Board. However, the importer filed a Miscellaneous Petition seeking reconsideration based on a Pollution Control Board report dated 14.10.2011, which was available at the time of the Tribunal's original order. The Tribunal, without a categorical statement from the Pollution Control Board on the hazardous nature of the goods, directed the release of the goods. The High Court found no justifiable ground to confirm the Tribunal's order for release, as the basis for the Tribunal's decision was no longer valid after the High Court's order in related writ petitions was set aside.

2. Appropriateness of CESTAT directing the department to get the goods examined by the Pollution Control Board:
The High Court scrutinized whether the CESTAT was right in directing the department to get the goods examined by the Pollution Control Board, which is not a prescribed authority for identifying hazardous waste as per the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. The court observed that the Commissioner of Customs (Appeals) had directed the lower authority to get the inspection done by the Pollution Control Board to ascertain the hazardous nature of the goods. However, the Pollution Control Board's report did not provide a categorical statement regarding the hazardous nature of the imported tyres. The High Court agreed with the Revenue's contention that the Pollution Control Board's report was inconclusive and did not justify the release of the goods.

3. Correctness of CESTAT's direction to clear the goods without evidence:
The High Court evaluated whether the CESTAT's direction to clear the goods without evidence establishing that they were not hazardous waste was correct. The court pointed out that the Pollution Control Board's report did not categorically state the absence of hazardous materials in the imported tyres. The Tribunal's reliance on this report to order the release of the goods was deemed unjustifiable. The High Court emphasized that the Tribunal, in its initial order, had correctly directed the authorities to obtain a report from the Pollution Control Board. The subsequent order by the Tribunal, which allowed the release of the goods based on an inconclusive report, was set aside by the High Court. The matter was remanded back to the Adjudicating Authority to decide afresh after obtaining a comprehensive report from the Tamil Nadu Pollution Control Board.

Conclusion:
The High Court set aside the CESTAT's order dated 17.04.2012 and restored the matter to the Adjudicating Authority to decide afresh after obtaining a detailed report from the Tamil Nadu Pollution Control Board. The court directed the Additional Commissioner of Customs to get the certificate from the Pollution Control Board within six weeks and pass orders on merits within a further six weeks. The Civil Miscellaneous Appeal was disposed of, and the related Writ Petition was dismissed.