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2020 (10) TMI 597 - HC - CustomsMisdeclaration of imported goods - import of huge tonnes of Used Rubber Tyre Cut into Two Pieces (used Rubber Tyre with one cut in bead wire) in containers - restricted goods or not - It is the specific case of the respondent/writ petitioner that the said goods are freely importable under policy conditions and also under CTH 40040000 and they had satisfied the conditions of the Exim Policy and they are one of the actual user of the said goods imported - HELD THAT - In the considered opinion of this Court, in the light of the non taking of stand by the appellants/responds as to the applicability of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in the light of the stand taken in the Writ Petitions, it cannot be concluded as a restricted item, for which, provisional release is not prohibited. It is also to be pointed out at this juncture that the third appellant/third respondent in compliance of the order passed in the Writ Petitions has also ordered the provisional release, subject to various conditions. There is no error apparent in the impugned orders passed and it also protected the interests of both parties. It is also made clear that the claim or otherwise of the Writ Petitioner/Importer is also subject to the out come of the adjudication proceedings, which came to be initiated subsequent to the filing of the Writ Petitions - Appeal dismissed.
Issues Involved:
1. Legality of the import of "Used Rubber Tyre Cut into Two Pieces". 2. Compliance with Foreign Trade Policy and Hazardous Waste Management Rules. 3. Provisional release of imported goods. 4. Adjudication of the Show Cause Notice under Section 124 of the Customs Act, 1962. Detailed Analysis: 1. Legality of the Import of "Used Rubber Tyre Cut into Two Pieces": The respondent/writ petitioner claimed that the imported goods, "Used Rubber Tyre Cut into Two Pieces," were freely importable under the policy conditions and CTH 40040000. They argued that they had met all the conditions of the Exim Policy and were actual users of the imported goods for manufacturing 'Rubber Crumb'. However, the appellants/respondents contended that the imported goods did not have a cut in the bead wire, making them a restricted item requiring valid authorization from the Director General of Foreign Trade (DGFT). The Customs Officers seized the goods for further investigation under the Customs Act, 1962. 2. Compliance with Foreign Trade Policy and Hazardous Waste Management Rules: The appellants/respondents argued that the imported "Used Rubber Tyres" were restricted under the Foreign Trade Policy and required valid authorization from DGFT. They also cited the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, which mandate that waste listed under Part B of Schedule III cannot be imported without permission from the Ministry of Environment and Climate Change. The respondent/writ petitioner countered that the Hazardous Waste Management Rules were not invoked in the counter affidavits or the Show Cause Notice. 3. Provisional Release of Imported Goods: The learned Single Judge directed the appellants/respondents to assess and permit the provisional release of the goods upon payment of applicable customs duties. The appellants/respondents challenged this decision, arguing that the imported goods violated the import policy. The respondent/writ petitioner cited a Supreme Court judgment (Atul Automations Pvt. Ltd.) that allowed provisional release of restricted goods, supporting the decision of the learned Single Judge. The Court noted that the appellants/respondents had not taken a stand on the applicability of the Hazardous Waste Management Rules in their counter affidavits. 4. Adjudication of the Show Cause Notice under Section 124 of the Customs Act, 1962: The respondent/writ petitioner acknowledged receiving a Show Cause Notice under Section 124 of the Customs Act, 1962, and stated that they would defend the proceedings appropriately. The Court emphasized that the provisional release was subject to the outcome of the adjudication proceedings initiated by the Show Cause Notice. Conclusion: The Court dismissed the Writ Appeals, confirming the common orders dated 25.08.2020 and 03.09.2020, which allowed the provisional release of the imported goods. The Court clarified that the interests of both parties were protected and that the claim or otherwise of the writ petitioner/importer was subject to the outcome of the adjudication proceedings. The Miscellaneous Petitions connected to the Writ Appeals were also dismissed, with no order as to costs.
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