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TMI Blog2010 (2) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, which made the Customs authorities refer the case to SIIB (Import). On physical examination of the goods under SIIB's supervision, 310.5 kg of plastic scrap was found alongwith HMS. The SIIB (Import) reported that the plastic waste/scrap found in the above containers was a hazardous waste listed under the Hazardous Waste (Management and Handling) Rules, 1989 and that import of such waste from any country to India was not permissible as per Rule 11(1) of the said Rules. It was also reported that the above import of hazardous waste without prior permission of the Government amounted to illegal traffic under Rule 15 of the said Rules and hence the material should be shipped back to the exporting country or disposed of in terms of Rule 15(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that the department has no case that HMS weighing 140.34 MTs imported by the appellant was otherwise liable to confiscation. It is pointed out that the goods were redeemed on payment of fine etc. and hazardous waste re-exported. The learned Consultant has also submitted that the fine of Rs. 5.00 lakhs and the penalty of Rs. 2.00 lakhs imposed by the learned Commissioner are extremely harsh in the circumstances of this case. 5. I have heard the SDR as well, who has reiterated the findings of the learned Commissioner. 6. After considering the submissions, I have found substance in the submission that there is no justification for confiscation of the HMS imported by the appellant. Apparently, nothing was concealed by them. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the materials (HMS and plastic scrap) is liable to confiscation under Section 119 of the Customs Act. The learned Commissioner has invoked Section 111(d) of the Act also. As rightly pointed out by the learned S.D.R., there was a prohibition against import of hazardous plastic waste at the time of the subject import and, therefore, the Commissioner is right in having confiscated the plastic scrap under Section 111(d) of the Act. There was no prohibition against the import of HMS and, therefore, this provision of law was not liable to be invoked for confiscation of the HMS. In other words, the above penal provisions were indiscreetly applied by the Commissioner for confiscation of the entire consignment. This action of the Commissioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant having deliberately imported the plastic scrap. However, they are not entitled to argue against the invocation of Section 112 of the Act, inasmuch as the confiscation of the hazardous waste contained in the imported consignment is not under challenge. Section 112(a) of the Act does not require the adjudicating authority to enquire as to whether the appellant had acted with mens rea. In the result, a penalty under Section 112(a) of the Customs Act cannot be resisted by the appellant, but its quantum must be reasonable. Having regard to the facts and circumstances of this case, I reduce the quantum of penalty to Rs. 50,000/- (Rupees Fifty thousand only). 8. With the above modifications, the Commissioner's order is sustained and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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