2019 (7) TMI 342 - AT - Customs

Import of CRT monitors - prohibited goods or not - it was alleged that the goods which were imported were hazardous waste and were covered by Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 - imposition of penalty u/s 112 of FA - HELD THAT - The goods which are imported in violation of any provision of the Act or Rules can be confiscated under section 111 of the Customs Act, 1962. In this case, undisputedly, there is a violation of para 2.17 of Foreign Trade Policy framed under the Foreign Trade (Development and Regulation) Act, 1992, inasmuch as the goods which were imported were old and used and could not have been imported without a licence from the Director General of Foreign Trade. The appellant has imported these goods in violation of Foreign Trade Policy and therefore the goods were liable for confiscation under section 111 and they were liable to penalty under section 112 of the Customs Act, 1962. Whether the goods in question can also be considered as hazardous waste? - HELD THAT - This determination can be made if there is a specific notification by the Ministry of Environment to the effect. Once the goods are notified as hazardous waste, Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 apply and as per Rule 17(2), the importer is legally duty bound to re-export that hazardous waste. The responsibility for ensuring that the goods are re-exported rests on the State Pollution Control Board. No case has been made out by the Revenue that the imported goods are hazardous waste. Therefore, the goods cannot be termed as hazardous waste in the absence of any specific legal provision. However, they are liable for confiscation under section 111 of the Customs Act, 1962 for import in violation of para 2.17 of Foreign Trade Policy and the importer is liable for penalty under section 112 of the Customs Act, 1962. Appeal disposed off.

Issues:
1. Import of old and used goods without a license from the Director General of Foreign Trade.
2. Allegation of goods being hazardous waste under Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008.
3. Confiscation of goods, redemption fines, and penalties imposed by the authorities.
4. Appeal against the orders of lower authorities regarding fines and penalties.
5. Determination of whether the imported goods can be considered hazardous waste.
6. Legal provisions under Customs Act, 1962 and Foreign Trade Policy regarding confiscation and penalties.

Issue 1: Import of old and used goods without a license from the Director General of Foreign Trade.
The appellant imported old and used goods without a license from the Director General of Foreign Trade, violating para 2.17 of the Foreign Trade Policy 2009-2014. The goods were confiscated, and redemption was allowed on payment of fines and penalties. The appellant argued that they have been importing such goods for trade and customs usually allow redemption in such cases.

Issue 2: Allegation of goods being hazardous waste under Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008.
The authorities alleged that the imported goods were hazardous waste under the Hazardous Wastes Rules, leading to confiscation and a direction for re-export. The appellant contested this, stating that there was no evidence to prove the goods were hazardous and that no specific notification classified them as such.

Issue 3: Confiscation of goods, redemption fines, and penalties imposed by the authorities.
The original authority ordered confiscation of goods and allowed redemption on payment of fines, with a condition of re-export. Penalties were also imposed under section 112 of the Customs Act. The first appellate authority upheld the orders but reduced the fines and penalties imposed.

Issue 4: Appeal against the orders of lower authorities regarding fines and penalties.
The appellant appealed against the orders of lower authorities, contesting the fines and penalties imposed. The first appellate authority reduced the fines and penalties in some cases but upheld them in others.

Issue 5: Determination of whether the imported goods can be considered hazardous waste.
The judgment analyzed whether the imported goods could be classified as hazardous waste under the Hazardous Wastes Rules. It was concluded that without a specific notification designating them as hazardous waste, the goods could not be considered as such.

Issue 6: Legal provisions under Customs Act, 1962 and Foreign Trade Policy regarding confiscation and penalties.
The judgment highlighted the legal provisions under the Customs Act, 1962, and the Foreign Trade Policy. Goods imported in violation of the Foreign Trade Policy were liable for confiscation under section 111 and penalties under section 112. The judgment clarified that while the goods were liable for confiscation due to policy violation, they could not be termed as hazardous waste without specific legal provisions.

In conclusion, the judgment modified the impugned orders, allowing the importer to redeem and clear the goods on payment of redemption fines and appropriate duties within a specified period. The direction for re-export was set aside, while the penalties imposed under section 112 of the Customs Act, 1962 were upheld. The appeals were disposed of accordingly.

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