2020 (7) TMI 517 - AT - Customs

Re-export of confiscated goods - import of old and used ventilators with all standard accessories - prohibited goods or not - eligible for home consumption or not - applicability of sub-rule (6) of Rule 12 of Hazardous and Other Wastes (Management, Handling and Transboundry Movement) Rules 2016 - HELD THAT - On perusal of said Schedule VI of the said Rules, it is seen that at Basel No.B1110 used critical care medical equipment for reuse are included. The goods imported by the appellant and which are impugned goods are ventilators which through common knowledge, we note that the same are critical care medical equipments. The appellant has declared them as used ventilators. Further reuse includes original use. Therefore, the imported goods which are subject matter of this appeal are covered by Basel No.B1110 and are covered by said Schedule VI - the learned counsel for appellant cannot be agreed upon, that the impugned goods are covered by Schedule III to the said Rules 2016 - thus, the impugned goods are covered by Schedule VI of the said rules and as per Rule (6) of Rule 12 of the said rules, import of the same is not permitted. On confiscation the goods becomes property of Government. The original authority has also given option to redeem the goods for exportation. Under the provisions of Section 125 of Customs Act, 1962 the option to redeem the same is provided. However, the said option cannot be compelled. Therefore, if the appellant does not choose to redeem the goods then the goods shall remain in India and cannot be re-exported - confiscation of goods is set aside so as to facilitate re-export of impugned goods - Once the confiscation is set aside, the question of imposition of redemption fine does not arise - Further, on setting aside confiscation, imposition of penalty also does not arise. Appeal allowed in part.

Summary

Issues:
1. Interpretation of Hazardous and Other Wastes (Management, Handling and Transboundary Movement) Rules 2016 regarding import of used ventilators.
2. Applicability of Schedule VI of the said Rules to the imported goods.
3. Consideration of the definition of reuse under the Rules.
4. Assessment of the ruling by the Hon'ble Madras High Court in a similar case.
5. Decision on the confiscation, redemption fine, and penalty imposed.

Interpretation of Hazardous and Other Wastes (Management, Handling and Transboundary Movement) Rules 2016:
The case involved the import of used ventilators, declared as old and used critical care medical equipment. The Customs officers sought a Chartered Engineer's assistance to examine the goods, leading to a confiscation order due to the goods being considered prohibited for import under Schedule VI of the Rules. The appellant argued that the goods did not fall under the definition of waste as per the Rules.

Applicability of Schedule VI of the Rules:
The Tribunal analyzed Schedule VI, noting that used critical care medical equipment for reuse, including ventilators, were listed under Basel No.B1110. The Tribunal determined that the imported ventilators were indeed critical care medical equipment, covered by Schedule VI, and thus subject to the import restrictions outlined in the Rules.

Consideration of the definition of reuse:
The definition of reuse under the Rules was crucial in the assessment. The Tribunal emphasized that reuse encompassed original use, establishing that the appellant's intention to use the ventilators for original purposes did not exempt them from the import restrictions under the Rules.

Assessment of the ruling by the Hon'ble Madras High Court:
The Tribunal distinguished a previous ruling by the Hon'ble Madras High Court, which involved second-hand digital machines, stating that the specific case did not apply to the present scenario concerning critical care medical equipment. The Tribunal clarified that the nature of the machines, whether complete or incomplete, was not a determining factor in the current case.

Decision on the confiscation, redemption fine, and penalty imposed:
The Tribunal modified the original order, setting aside the confiscation of goods to facilitate their re-export. As a result, the redemption fine and penalty were also negated. The appellant was directed to re-export the goods, as per the Customs Act, thereby partially allowing the appeal.

This detailed analysis of the judgment provides a comprehensive understanding of the issues addressed and the Tribunal's decision-making process in relation to each aspect of the case.