2017 (4) TMI 83 - HC - Customs

Waste - Import of old and used tyres - Prohibited Goods or Restricted Goods? - classification of goods - Held that - the role of Ministry of Environment, Forest and Climate Change is essentially for regulating, controlling and managing the Hazardous Wastes and its effect upon the environment in our country. The hazardous wastes presupposes the wastes and, therefore, it has required to be wastes and that to hazardous wastes. The goods in question cannot be said to be a waste in any manner, much less, any hazardous waste so as to attract the provision and attract the prohibition under the Rules. Moreover, the prima facie reading of the Entry No.B3140 also clearly goes to say that the tyres meant for direct reused cannot be exempted from the prior consent. The petitioner shall not clear any goods which are not reusable. Petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Non-clearance of imported goods causing demurrage and damages.
2. Interpretation of the Office Memorandum dated 24.11.2014 and its enforceability.
3. Classification of imported tyres under the Customs Tariff Act and relevant rules.
4. Grant of interim relief for clearance of goods.

Issue-wise Detailed Analysis:

1. Non-clearance of imported goods causing demurrage and damages:
The petitioner argued that the goods, which arrived at the Indian Port in May 2016, were incurring huge demurrage and damages due to non-clearance. Despite repeated hearings, the matter was adjourned due to the absence of representation from respondent no.2. The petitioner sought interim relief to mitigate the financial losses.

2. Interpretation of the Office Memorandum dated 24.11.2014 and its enforceability:
The petitioner contended that the Office Memorandum, which classified old and used tyres as "Prohibited Goods," lacked statutory backing and was merely administrative. This argument was supported by a previous court decision in Civil Application No.9587 of 2015, which held that the Office Memorandum was not pursuant to any power conferred by the relevant Act or Rules. The court reiterated that the Office Memorandum did not have enforceability in law and could not be relied upon to refuse the processing of the bills of entry.

3. Classification of imported tyres under the Customs Tariff Act and relevant rules:
The petitioner argued that the imported tyres were classified under Entry No.4012 of the Customs Tariff Act, which was not disputed. The court examined the definitions of "waste" and "hazardous waste" under the relevant rules, concluding that the tyres in question did not qualify as waste or hazardous waste. The court also compared the old and new entries for waste pneumatic tyres, determining that the addition of the words "and other tyres" did not change the legal provision regarding tyres meant for direct reuse.

4. Grant of interim relief for clearance of goods:
The court noted the substantial similarity between the present case and a previous case where interim relief was granted. Given the prima facie case in favor of the petitioner, the court decided to grant interim relief to prevent irreparable loss and injury. The court ordered the Customs authorities to depute a Surveyor to check the reusability of the tyres and permit clearance for those that were directly reusable. The court also directed provisional assessment of the bill of entry without requiring permission from the Ministry of Environment, Forest and Climate Change (MOEF) or a license from the Directorate General of Foreign Trade (DGFT).

Conclusion:
The court granted interim relief to the petitioner, allowing the clearance of reusable tyres and mitigating financial losses due to demurrage. The judgment emphasized that the Office Memorandum dated 24.11.2014 lacked statutory enforceability and that the imported tyres did not qualify as hazardous waste under the relevant rules. The court's decision was guided by the principles of balance of convenience and preventing irreparable harm to the petitioner.