2019 (1) TMI 1693 - HC - Customs

Confiscation - import of plastic waste - restricted item or not - concealing of smuggled goods - allegation that a huge quantity of 19.83 M.T. of used plastic was imported, without declaring such import in the Bill of Entry and without obtaining clearance from the DGFT - HELD THAT - The submission of Mr. Rahul Consul, Learned Counsel for the appellant, that it is the exporter who is responsible, and the appellant who had imported the goods bona fide cannot be subjected to fine and penalty, as he was unaware that the goods imported by him also contained used plastic, is not tenable. In the order under appeal, the Tribunal has noted that Clause 7 of the contract provided for pre-shipment inspection of the imported goods. As it was open to the appellant to inspect the goods, before they were exported to India (prior to shipment), he could not absolve himself of blame and claim to be unaware that the shipment contained used plastic of a considerable quantity. An appeal to the High Court is available, under Section 130 of the Customs Act, only if the case involves a substantial question of law. The Tribunal is the final Court of fact, and it is only if such findings are either perverse or are based on no evidence, would they give rise to a substantial question of law warranting interference in proceedings under Section 130 of the Customs Act - The findings recorded by the Tribunal, in the order under appeal, do not suffer from any such infirmity nor does a substantial question of law arise for consideration in this appeal. There are no reason to entertain this appeal in the exercise of our jurisdiction under Section 130 of the Customs Act - appeal dismissed.

Summary

Issues:
- Delay in filing the application to restore the appeal
- Import of mixed paper waste containing undeclared plastic content
- Confiscation of goods under the Customs Act
- Appeal against the order of the Customs, Excise & Service Tax Appellate Tribunal
- Liability for payment of fine/penalty
- Responsibility of the importer in case of undeclared goods
- Availability of appeal to the High Court under Section 130 of the Customs Act
- Substantial question of law in the case

Analysis:
1. Delay in filing the application: The High Court condoned a one-day delay in filing Application No. 1572 of 2018 to restore the appeal to file, and subsequently restored the appeal. This issue was addressed promptly and resolved in favor of the appellant.

2. Import of mixed paper waste containing undeclared plastic content: The appellant imported goods consisting of mixed paper waste, with a portion being undeclared plastic waste. The plastic content was not declared in the Bill of Entry, and no license for importing plastic waste was submitted. Testing revealed the imported plastic waste was Polyethylene Terephthalate and toxic, leading to confiscation under the Customs Act.

3. Confiscation of goods under the Customs Act: The imported plastic waste was confiscated under various clauses of Section 111 of the Customs Act, while the used paper waste collected as road sweepings was allowed to be redeemed on payment of a fine. The Tribunal upheld the confiscation based on the violation of import conditions and concealment of smuggled goods.

4. Appeal against the order of the Customs, Excise & Service Tax Appellate Tribunal: The appeal was preferred under Section 130 of the Customs Act against the Tribunal's order, which confirmed the confiscation and penalties imposed by the appellate authority. The High Court analyzed the arguments presented by both parties and affirmed the Tribunal's decision.

5. Liability for payment of fine/penalty: The appellant argued that they should not be held liable for penalties imposed due to the fault of the exporter. However, the Court found that the appellant failed to absolve themselves of responsibility to ensure the accuracy of goods imported as per the declaration in the Bill of Entry.

6. Responsibility of the importer in case of undeclared goods: The Court emphasized that the appellant had the opportunity for pre-shipment inspection as per the contract terms. Therefore, claiming ignorance about the presence of undeclared plastic waste in the shipment was not a valid defense against liability for confiscation and penalties.

7. Availability of appeal to the High Court under Section 130 of the Customs Act: The High Court clarified that an appeal can be made to the High Court under Section 130 of the Customs Act only if there is a substantial question of law involved. In this case, the Court found no such substantial question of law warranting interference in the Tribunal's findings.

8. Substantial question of law in the case: The Court concluded that the Tribunal's findings were not erroneous or based on no evidence, and hence, did not give rise to a substantial question of law. Consequently, the appeal was dismissed as there was no reason to entertain it under the jurisdiction of the High Court.