2008 (11) TMI 267 - HC - Customs

Import of unsorted scrap of waste paper, heavily contaminated with municipal waste/garbage attracting the classification of municipal waste and hazardous waste - confiscation under the Customs Act - whether appellant should not be directed to re-export the goods at their own risk, costs and consequences thereon? - why penalty should not be imposed on them under Section 112 of the Customs Act? Held that - Pursuant to the consent given by all the counsel in the matter, the learned single Judge has passed the order dated 21-9-2007 and thereafter pursuant to the directions of the learned single Judge, the Central Pollution Control Board examined the cargo on 7-11-2007 and have submitted a report dated 16-11-2007, recommending that the cargo contains highly hazardous substances and disposal of the same in any manner will lead to pollution and that the cargo has to be re-exported to the country of its origin. Having already accepted to constitution of such an expert body before the learned single Judge, the appellant is estopped from challenging the said order passed by the learned single Judge now. On a careful perusal of the entire materials on record, we are not able to find any illegality or irregularity in the recommendations made by the Expert Body i.e. the Central Pollution Control Board, to re-export the hazardous goods to the country of its origin and the Customs officials, accepting the recommendations of the Expert Body, have issued the consequential order, directing the appellant to re-export the so-called cargo to the country of its origin. Therefore, there are no merits in both the above writ petitions and accordingly, they are liable to be dismissed along with the writ Appeal. 8th respondent/Central Pollution Control Board, Bangalore, are directed to take all steps to de-stuff the cargo from the containers of the first respondent at the cost and expenditure of the appellant and see that the first respondent re-exports the cargo to the seventh respondent himself that is the country of origin

Issues Involved:
1. Whether the writ appeal and writ petitions filed by the appellant are maintainable under law.
2. Whether the appellant is the 'importer' of the cargo in the true meaning of the Hazardous Waste (Management and Handling) Rules, 1989.
3. Whether the cargo imported to India is hazardous waste.
4. Whether the appellant can be held liable for the re-export of the cargo and the associated costs.
5. Whether the first respondent is entitled to recover charges and expenses from the appellant.

Issue-Wise Detailed Analysis:

1. Maintainability of the Writ Appeal and Writ Petitions:
The court noted that the appellant had consented to the order passed by the learned single Judge, which involved appointing a team of experts to examine the cargo and dispose of it based on their recommendations. The Central Pollution Control Board (CPCB) examined the cargo and recommended its re-export due to its hazardous nature. Given the appellant's prior consent to this process, the court held that the appellant could not now challenge the order. Therefore, the writ appeal and writ petitions were dismissed as not maintainable.

2. Appellant as the 'Importer':
The court examined the definitions of 'import' and 'importer' under the Customs Act, 1962, and the Hazardous Wastes (Management and Handling) Rules, 1989. It was established that the appellant had placed orders for waste paper with the seventh respondent and had filed Bills of Entry for the cargo. Despite the appellant's claims to the contrary, the court found sufficient evidence to classify the appellant as the 'importer' of the cargo. Consequently, the appellant's argument that they were not the importer was rejected.

3. Nature of the Cargo:
The court reviewed the findings of the CPCB and the Customs officials, which included photographs and detailed reports indicating that the cargo contained contaminated municipal waste. The court concluded that the cargo was indeed hazardous and posed a danger to the environment if disposed of in India. This finding was based on the factual evidence and expert recommendations.

4. Liability for Re-export and Costs:
The court noted that the appellant had initially sought to re-export the cargo to Ajman, UAE, without the consent of the original sender, M/s. Evergreen Specialities, USA. When the cargo was rejected by UAE Customs, the appellant attempted to shift responsibility. The court held that the appellant was liable for the re-export of the cargo to its country of origin (USA) as per the recommendations of the CPCB and the Customs officials. The appellant was also responsible for all associated costs, including those incurred by the first respondent for providing containers.

5. Recovery of Charges by the First Respondent:
The court found that the first respondent, who provided the containers for the shipment, was entitled to recover all charges and expenses from the appellant. The appellant and the third respondent had engaged the services of the first respondent, and the court held that they could not escape their liability by shifting blame. The court directed that the containers be de-stuffed and returned to the first respondent, with all costs borne by the appellant.

Conclusion:
- The writ appeal and writ petitions filed by the appellant were dismissed.
- The appellant was held to be the 'importer' of the hazardous cargo.
- The cargo was confirmed to be hazardous waste.
- The appellant was directed to re-export the cargo to the USA at their own cost.
- The first respondent was entitled to recover charges from the appellant.
- The court imposed a cost of Rs. 50,000 on the appellant to be paid to the Tamil Nadu Legal Services Authority.
- The court directed the relevant authorities to ensure the re-export of the cargo and to initiate legal proceedings against the concerned officers of the appellant for their actions.

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