9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (11) TMI 127 - AT - CustomsConfiscation of imported goods - lubricant oil open gear - hazardous waste liable to confiscation or not - imported goods found as hazardous waste shall be re- exported by the importer at his own expense in view of the provisions of Rule 17 of Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 or not - levy of redemption fine and penalty - HELD THAT - Entire dispute revolves around the test reports dated 09.02.2015 in respect of the three samples drawn by the department and sent to CRCL for testing. Undisputedly as has been admitted by the Chemical Examiner CRCL during cross examination, CRCL was not having the capability to test the hazardous waste, and hence the test was conducted by one private laboratory, M/s Avon Food Labs Pvt Ltd. For justifying the same Commissioner (Appeal) has referred to the CBEC Circular No 09/2009-Customs - From perusal of the test reports, it is quite evident that, the report do not disclose the name of laboratory where the samples were tested and also the report of the said laboratory has not been disclosed in the opinion furnished by the Chemical Examiner, CRCL. At this point it is relevant to look into the questions that were put to Shri A K Maurya Chemical Examiner during the cross examination. We do not find ourselves in agreement with the order of the adjudicating authority, whereby he confiscates the goods and imposes the redemption fine and directs the goods to be re-exported. Redemption of the goods against the redemption fine is the option given to the importer/ exporter and it is his choice whether to avail of that option. If the goods are to be re- exported as per Rule 17 (2) of Hazardous Waste Rules, 2008, then such an action could not have been justified, as importer can very well chose not to pay the redemption fine. The approach of the adjudicating authority cannot be upheld in any manner. Impugned order of Commissioner (Appeal) is totally silent on this vital aspect of permitting the goods to be re- exported against payment of redemption fine. Since the issue involves the hazardous good we would not be in position to permit the clearance of the goods without the active consideration of the same by the SPCBs/ PCCs who are the designated authority in terms of the rule 17 (2) of the Hazardous Waste Rules, 2008 and also as per the Board Circular of 2009 - the revenue authorities should make a proper and justifiable opinion in the matter as to the nature of the goods after retesting of the same and in consultation with the concerned SPCB. On the basis of the said opinion, the appellant should be either permitted to clear the goods in DTA or re-export the same as per Rule 17 (2) of the Hazardous Waste Rules, 2008. In case importer do not intend to opt for the said options the said goods, needs to be dealt in the manner as prescribed by the Hazardous Waste Rules, 2008 for disposal. The matter is remanded back to the original authority to get the samples of the impugned goods re-tested by CRCL or any appropriately notified laboratory to determine the hazardous nature of the goods - appeal allowed by way of remand.
Issues Involved:
1. Whether the imported goods are hazardous waste under the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. 2. Validity of the test reports and the process followed for determining the hazardous nature of the goods. 3. Legality of the order for re-export of the goods and imposition of redemption fine and penalty. Detailed Analysis: 1. Whether the imported goods are hazardous waste under the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008: The appellant imported 44306.90 kg of Lubricant Oil - Open Gear, which was declared under tariff item 2710 1980 of the Customs Tariff Act, 1985. The goods were tested by CRCL, New Delhi, and the reports indicated that the PAH (Polycyclic Aromatic Hydrocarbons) content in the samples exceeded the prescribed limit, categorizing the goods as hazardous waste. The adjudicating authority and Commissioner (Appeals) upheld the confiscation and ordered re-export of the goods under Rule 17 of the Hazardous Waste Rules, 2008, with a redemption fine and penalty imposed under Sections 111(d), 111(m), and 112 of the Customs Act, 1962. 2. Validity of the test reports and the process followed for determining the hazardous nature of the goods: The appellant contested the test reports, arguing that CRCL did not have the facility to test for hazardous waste until December 2015, and the tests were conducted by a private laboratory, M/s Avon Food Labs Pvt Ltd. The Chemical Examiner, during cross-examination, confirmed that CRCL lacked the testing facility at the time and that the tests were outsourced. The adjudicating authority relied on the test reports and clarifications from CRCL, but the appellant argued that the actual test reports from the private laboratory were not disclosed, raising doubts about the validity of the findings. The adjudicating authority and Commissioner (Appeals) dismissed the appellant's arguments, stating that the private laboratory was accredited and recognized for testing hazardous waste under the relevant rules and circulars. However, the CESTAT noted that the test reports did not disclose the name of the laboratory, and the actual test report was not provided. The CESTAT highlighted the need for re-testing by CRCL or an appropriately notified laboratory to determine the true nature of the goods. 3. Legality of the order for re-export of the goods and imposition of redemption fine and penalty: The adjudicating authority ordered the re-export of the goods after payment of a redemption fine of ?50,000 and imposed a penalty of ?10,000. The CESTAT found this approach contrary to the decisions in similar cases, where it was held that Section 125 of the Customs Act does not confer the power to impose conditions for re-export on payment of redemption fine. The CESTAT cited several decisions, including Pace India [2020 (372) ELT 442 (T)], HBL Power Systems Ltd. [2018 (362) E.L.T. 856 (Tri. - Hyd.)], and others, which established that the adjudicating authority cannot compel re-export on payment of redemption fine. The CESTAT emphasized that the responsibility to prevent the import of hazardous waste lies with the revenue authorities and the State Pollution Control Boards (SPCBs). The CESTAT directed the original authority to get the samples re-tested by CRCL or an appropriately notified laboratory and consult with the SPCB to determine the hazardous nature of the goods. Based on the re-test results, the appellant should be allowed to clear the goods in DTA or re-export them as per Rule 17(2) of the Hazardous Waste Rules, 2008. If the importer does not opt for these options, the goods should be disposed of as per the Hazardous Waste Rules, 2008. Conclusion: The CESTAT set aside the impugned order and remanded the matter back to the original authority for re-testing of the goods and consultation with the SPCB. The original authority was directed to follow the principles of natural justice and dispose of the matter within three months. The appeal was disposed of in these terms.
|
