2018 (12) TMI 29 - HC - Customs

Quantum of penalty u/s 112 of FA - penalty was imposed in lieu of confiscation as the Impugned oil was leaked and could not be confiscated - presence of mens rea or not - Held that - In the present case, the only contention of the importer, the appellant is that they had been carrying on the import earlier also under OGL. We notice that the Commissioner in Annexure G Order has specifically indicated that the concept of Hazardous Wastes was introduced for the first time on 01.04.1995 in the EXIN Policy 1992-97 through insertion of Sl.No.8 under Group H (Chemical and Allied Item) of Part II of the Negative List of imports, whereby Hazardous Wastes were placed in the Restricted List. The term Hazardous Wastes even then was not defined and the HSN aligned policy came into effect from 26.03.1996. In the HSN aligned policy which came into effect on 26.03.1996 there was an import licensing note in which it was inter alia stated that Hazardous Wastes will be permitted for import only against the licence for the purpose of processing and reuse. It was taking into account, these aspects that the import licence as well as authorization from the respective State Pollution Control Boards under Rule 11 of the Hazardous Wastes Rules was insisted upon. The import of the assessee was sought to be cleared by Bill of Entry dated 12.12.1986. Hence assessee cannot feign ignorance of requirement of an import licence as also authorization from the SPCB. The earlier imports under OGL has no relevance for reason of the change in Policy. There is absolutely no ambiguity insofar as the provision applicable under Section 112, which though not specifically mentioned is clear from the reference to Section 111(d). We also notice that the penalty imposed is in lieu of confiscation for reason of the goods not being available for confiscation. It is the admitted position that after the re-export was declined, the goods stored in containers in the premises of the appellant leaked out and the appellant's factory itself is closed down - The penalty imposed in lieu of confiscation is in fact a flea bite on the appellant, who was liable to confiscation of the goods imported. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Modification of penalty by CESTAT from ?2 lakhs to ?1 lakh.
2. Allegations of import of hazardous waste without required permits.
3. Mens rea and imposition of penalty.
4. Applicability of previous import history under OGL.
5. Interpretation of law regarding import of hazardous waste.
6. Comparison with previous legal judgments.
7. Applicability of Sections 111(d) and 112 of the Customs Act.
8. Justification for penalty imposition in lieu of confiscation.

Analysis:
1. The case involved an appeal against the modification of a penalty by the Customs Excise and Service Tax Appellate Tribunal (CESTAT) from ?2 lakhs to ?1 lakh.
2. The appellant was engaged in distillation of waste oil and imported waste oil for conversion into lubricating oil. Customs authorities refused clearance due to the waste oil being classified as hazardous material under Hazardous Wastes Rules, 1989, requiring a special permit.
3. The appellant failed to produce the necessary import license and authorization from the Pollution Control Board, leading to confiscation proceedings and imposition of penalty under Sections 111 & 112 of the Customs Act.
4. The appellant argued lack of mens rea for penalty imposition, citing previous import history under Open General License (OGL) and legal precedents.
5. The court rejected the appellant's argument, emphasizing the change in policy regarding hazardous waste import and the necessity of valid permits, disregarding the appellant's claim of ignorance of the law.
6. Legal comparisons were made with previous judgments, highlighting the distinctions in circumstances and legal interpretations, ultimately finding them inapplicable to the current case.
7. The court clarified the application of Sections 111(d) and 112 of the Customs Act in the context of penalty imposition in lieu of confiscation for goods that were not available due to leakage and closure of the appellant's factory.
8. The penalty imposed was justified considering the circumstances, as the appellant was liable for confiscation of the imported goods. The appeal was dismissed without costs.