9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (12) TMI 647 - AT - CustomsAbsolute Confiscation - penalty - import of old and used Digital Multifunctional Devices (MFDs) with standard accessories from Singapore - enhancement of value - It appeared to the Department that the appellant has undervalued the goods and has violated the provisions of Hazardous and other wastes (Management Transboundry Movement) Rules, 2016, E-Waste (Management) Rules, 2016 and the Bureau of Indian Standards Act, 1986 read with Electronics IT Goods (Requirement of Compulsory Registration) Order 2012 as well as provisions of FTP 2015-20 - HELD THAT - This issue of import of MFDs has been considered by various decisions passed by this Tribunal as well as the High Court and the Apex Court, in the case of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES 2019 (1) TMI 1324 - SUPREME COURT where it was held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E- waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared. As far as violation of the Bureau of Indian Standard as per Compulsory Registration Order 2012 and also the violation of Hazardous and other waste (Management Transboundry Movement) Rules, 2016 and E-waste (Management) Rules, 2016 are concerned, this Tribunal in PARAG DOMESTIC APPLIANCES, ATUL AUTOMATION PVT LTD, KETAN KAMDAR DIRECTOR VERSUS COMMISSIONER OF CUSTOMS COCHIN-CUS 2017 (10) TMI 812 - CESTAT BANGALORE has specifically covered all the issues raised and disputed in the present appeal - It was held that the The importation of the impugned goods is in violation of Import Policy of the relevant time and also of some of the conditions of Hazardous Waste Rules 2016. The violation of Hazardous Waste Rules is with reference to country of origin certificate. The appellants in the present appeal are not disputing the enhancement of value made by the Customs on the basis of the report of the Chartered Engineer. Further, it s found that the ground of absolute confiscation has also been considered in various decisions and it has been consistently held that the goods (MFDs) are not liable for absolute confiscation and can be released on payment of redemption fine and penalty - the imported goods may be allowed for clearance on payment of redemption fine @ 10% and penalty @5% of the reassessed value besides payment of applicable Customs duty. Appeal disposed off.
Issues Involved:
1. Alleged undervaluation of imported goods. 2. Violation of Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016. 3. Violation of E-Waste (Management) Rules, 2016. 4. Violation of the Bureau of Indian Standards Act, 1986 read with Electronics & IT Goods (Requirement of Compulsory Registration) Order, 2012. 5. Violation of Foreign Trade Policy (FTP) 2015-20. 6. Absolute confiscation of goods under Section 111(d) and 111(o) of the Customs Act, 1962. Detailed Analysis: 1. Alleged Undervaluation of Imported Goods: The appellant imported 127 units of old and used Digital Multifunctional Devices (MFDs) from Singapore and filed Bill of Entry No. 2677800 dated 01/08/2017. The Chartered Engineer’s report dated 23/08/2017 enhanced the value of the goods from USD 25,035 to USD 34,115. The Department alleged undervaluation, leading to a show-cause notice. The adjudicating authority determined the value of the goods as ?22,71,815 and ordered absolute confiscation. 2. Violation of Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016: The appellant argued that the impugned goods are not hazardous waste. The Apex Court in Commissioner of Customs Vs. M/s. Atul Automations Pvt. Ltd. held that used MFDs with utility for at least five years are classified as “other wastes” under Rule 3(1)(23) and not hazardous waste. The Tribunal in S.R. Enterprises reiterated that the impugned goods are considered “other wastes” and not subject to the prohibitions applicable to hazardous waste. 3. Violation of E-Waste (Management) Rules, 2016: The appellant contended that the goods did not violate E-Waste Rules. The Apex Court and Tribunal decisions in similar cases supported the view that used MFDs with certified utility are not classified as e-waste under the relevant rules. The Tribunal in S.R. Enterprises confirmed that the goods are not hazardous waste and thus not subject to the E-Waste Rules. 4. Violation of the Bureau of Indian Standards Act, 1986 read with Electronics & IT Goods (Requirement of Compulsory Registration) Order, 2012: The appellant argued that MFDs are not listed in the schedule to the CRO 2012, and thus registration with the Bureau of Indian Standards is not required. The Tribunal in Sri Venkateswara Repro Graphics and S.R. Enterprises held that MFDs are not notified under the CRO 2012, and hence, the requirement for compulsory registration does not apply. 5. Violation of Foreign Trade Policy (FTP) 2015-20: The appellant conceded that the goods are restricted and they did not possess the authorization from the DGFT. The Tribunal acknowledged this violation but noted that the goods are not prohibited and can be imported with proper authorization. 6. Absolute Confiscation of Goods under Section 111(d) and 111(o) of the Customs Act, 1962: The Tribunal consistently held that MFDs are not liable for absolute confiscation. Instead, the goods can be released on payment of redemption fine and penalty. The Tribunal in S.R. Enterprises and other cases ordered the release of goods on payment of 10% redemption fine and 5% penalty of the reassessed value, in addition to applicable customs duty. Conclusion: The Tribunal found that the impugned order was not sustainable in law. The absolute confiscation of the goods was set aside, and the goods were allowed for clearance on payment of redemption fine at 10% and penalty at 5% of the reassessed value, along with applicable customs duty. The appeal was disposed of accordingly. Order Pronounced: (Order was pronounced in Open Court on 15/12/2020)
|
