2017 (2) TMI 11 - HC - Customs

Release of seized goods - import of Multi-Functional Devices - whether MFDs would come within the category of hazardous waste or not? - Held that - this Court is not inclined to release the goods placing reliance on the decisions cited. Especially since the original authority has not considered the issue and the impact of the declarations made by the different High Courts on the facts of the instant case. The issue cannot be dealt with on the basis of the provisions in the Customs Act alone. There are specific rules provided for import of hazardous waste and other wastes, which requires authorisation from authorities and import of second hand goods is specifically prohibited by the Foreign Trade Policy brought out by Government of India, Ministry of Commerce and Industry, Department of Commerce. In the context of what has been stated above by the Department, this Court is not inclined to grant an order for provisional release. The adjudicating authority would have to consider the issue and adjudicate on the same in a time bound manner.

Summary

Issues:
Import of Multi-Functional Devices (MFDs) detained by respondents; Interpretation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016; Provisional release of goods from Bonded Warehouse pending adjudication; Compliance with specific conditions for import of used goods; Request for direction to effect provisional release; Absence of authorization for import of second-hand goods; Re-export of goods; Legal implications of judgments from different High Courts; Dealing with import of hazardous waste and other wastes; Prohibition on import of second-hand goods under Foreign Trade Policy; Consideration of specific rules for import of hazardous waste and other wastes; Adjudication by the jurisdictional authority within a time frame.

Analysis:

The petitioners were concerned with the detention of Multi-Functional Devices (MFDs) upon import, with a direction to re-export the goods. The Senior Counsel referred to the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, specifically Rule 13(2), which categorized MFDs as "other wastes" under Schedule III. The petitioners argued that a judgment from the High Court of Judicature at Madras favored their stance, highlighting the need to furnish specific documents for import under Schedule VIII.

The Senior Counsel requested provisional release of the goods from the Bonded Warehouse, emphasizing compliance with terms outlined in Exhibit P3. However, the Standing Counsel contended that the focus should be on waste disposal within the country, citing concerns about turning the country into a dumping ground. The Department stressed the necessity of complying with the Rules at Exhibit P12 for controlling the import of used goods.

The petitioner's request for provisional release was objected to on the grounds of potential waste accumulation if the MFDs were released without proper authorization. The absence of authorization for importing second-hand goods was a key issue, with the petitioner offering to pay fines and penalties to secure release. The Court considered judgments from different High Courts but ultimately relied on specific rules governing import, including the prohibition on importing second-hand goods under the Foreign Trade Policy.

The Court declined to grant provisional release, citing the need for authorization and compliance with the relevant rules. However, the adjudicating authority was directed to consider the matter promptly, with a decision expected within three months. The Court disposed of the writ petitions without making any observations on the merits, leaving the final decision to the original authority.