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TMI Blog2007 (9) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Team of Officials nominated by the Central Pollution Control Board for a final determination of the question as to whether the goods are hazardous in nature which could only be incinerated or disposed of otherwise. The cost of such examination shall be borne in the first instance by the second respondent. If after the examination of the cargo, the Central Pollution Control Board comes to a final determination that it is hazardous, then the second respondent shall have the cargo incinerated or re-exported back to Evergreen Specialities Inc, USA or to any one else in any other country, if the material is held by the Central Pollution Control Board to be either non-hazardous or fit for disposal locally (though hazardous), the fifth respondent may permit the disposal of the cargo locally, subject however to the terms and conditions imposed by the Central Pollution Control Board. The incineration or re-export or local disposal shall be as recommended by the Pollution Control Board and it shall be at the cost of the second respondent, in the first instance. The second respondent shall carry out this obligation, as per the recommendation of the Pollution Control Board, within si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 withdrawing the two Bills of Entry dated 13-9-2005 and 21-9-2005 in respect of those 40 containers on the ground that the supply was contrary to the orders placed by them on M/s. Evergreen Specialities Inc, USA. 3. The Central Pollution Control Board, Bangalore inspected the cargo on 29-9-2005 and submitted a report on 4-10-2005. Therefore, the Commissioner of Customs passed a Note Order on 7-10-2005 directing the importer ITC Ltd., namely, the second respondent herein, to re-export the cargo covered by the aforesaid two Bills of Entry, at their own cost, risk and consequences, in terms of Rule 15 of Hazardous Wastes (Management and Handling) Rules, 1989. It was followed by an order-in-original dated 9-12-2005 confirming the Note order dated 7-10-2005. 4. In pursuance of the aforesaid order, re-export of the cargo was made, in favour of the exporter M/s. Evergreen Specialities Inc. However, such re-export was not made to USA, but was made to Ajman, UAE. This re-export was made by emptying the original containers in which the cargo landed up from USA at Tuticorin Port and by stuffing the cargo in the containers belonging to the petitioner. The petitioner provided 40 containers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was disposed of by Justice M. Jaichandren on 19-4-2007, the operative portion of which reads as follows : In the above circumstances, the fifth respondent is directed to permit the petitioner to shift the containers containing the Cargo, which is the subject matter of the writ petition, to any one of the Customs Bonded Warehouses, in Tuticorin, within a period of four weeks from the receipt of a copy of this order without prejudice to the contentions of the parties concerned. The fifth respondent is also directed to take appropriate steps to comply with Rule 15(2)(11) of The Hazardous Wastes (Management and Handling, Rules, 1989, expeditiously. The fourth and sixth respondents are directed to take necessary steps to enable the fifth respondent to comply with this order. This W.P. is ordered accordingly. Post on 25-4-2007. 10. The Union of India and the Commissioner of Customs who are the respondents 1 and 5 herein filed an appeal against the said order in W.A. No. 175 of 2007. The writ appeal was disposed of by the Division Bench by an order dated 31-5-2007 and the operative portion of the order of the Division Bench is as follows : Considering the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de-stuffing the cargo and for releasing the containers. In so far as the loss allegedly sustained by the petitioner under the entire transaction is concerned, the petitioner has already filed a civil suit in O.S. No. 7 of 2007 on the file of the District Court at Tuticorin seeking recovery of a sum of Rs. 2,28,88,825.82 together with interest. All the respondents herein except the Union of India are cited as defendants in the said suit. The petitioner has also impleaded the exporter M/s. Evergreen Specialities Inc, USA as a defendant in the said suit. 13. Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for the Union of India and the Commissioner of Customs, contended that the Ministry of Environment and Forests, Government or India, New Delhi had already issued an Office Memorandum bearing No. 13-1/2004-HSMD, dated 24-3-2005 permitting the import of paper, paperboard and paper product wastes into the country without any license, subject to the condition that it should not be contaminated with municipal and other wastes. Since the consignment of 40 containers were imported by the second respondent from M/s. Evergreen Specialities Inc, USA under two Bills of Entri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent ceased to be either an importer or an exporter in respect of the goods and consequently, they would have nothing to do with the prayer of the petitioner. 15. In addition to the aforesaid, Mr. Arvind P. Datar, learned Senior Counsel for the second respondent also contended that there has been no conclusive finding by the Central Pollution Control Board that what is contained in the 35 containers of the petitioner is actually Hazardous Waste, coming within the purview of the Hazardous Wastes (Management and Handling) Rules, 1989. In the absence of such a conclusive finding, the resistance on the part of the respondents 1 and 5 to allow the cargo to be transferred to other containers and to allow the containers to be shifted to any other Private Bonded Warehouse, was improper. As a matter of fact, the cargo came in different containers from USA and after the order of the Commissioner of Customs, they were transferred to the containers of the petitioner in the presence of the Customs Officials and exported to Ajman, UAE. Therefore, according to the learned Senior Counsel for the second respondent, the refusal of the Customs department to permit the petitioner to shift the contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Authorities contend that by virtue of Rule 15(3) of the Hazardous Wastes (Management and Handling) Rules, 1989, the liability to dispose it of, is only with the importer or the exporter and the Customs Authorities cannot take the role of a Municipal Corporation to clear or dispose of such waste material. 21. In order to appreciate the conflicting stand taken by the second respondent and the fifth respondent, it is necessary to examine some of the provisions of the Customs Act, 1962, the Major Port Trusts Act, 1963 and Hazardous Wastes (Management and Handling) Rules, 1989. Section 62 of the Major Port Trusts Act, 1963 empowers the Board of Trustees of a Major Port to dispose of goods not removed from the premises within a time limit. Section 62 reads as follows: 62. Disposal of goods not removed from premises within time limit - (1) Notwithstanding anything contained in this Act, where any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month from the date on which such goods were placed in their custody, the Board may, if the address of such owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paid or lien for freight is not discharged. 22. Section 48 of the Customs Act, 1962 prescribes the Procedure for sale of goods which are not cleared, warehoused or transhipped within 30 days after unloading. Section 48 reads as follows : 48. Procedure in case of goods not cleared, warehoused or transhipped within [thirty days] after unloading. - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped [within (thirty days)] from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof : Provided that - (a) animals, perishable goads and hazardous goods, may, with the permission of the proper officer, be sold at any time; (b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct. Explanation. - In this section, arms and ammunition have the meanings respectively assigned to them in the Arms Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of such waste.] 26. From a reading of Rule 15(3), it is clear that in the case of illegal transboundary movement of hazardous wastes, there is a liability fastened upon three persons namely - (a) the occupier exporting hazardous waste from the country; (b) the exporter exporting hazardous waste to the country; and (c) importer importing hazardous waste into the country. The obligation under Rule 15(3) imposed upon the above three persons, is two fold namely - (a) that the wastes in question is safely stored and shipped; or (b) that it is disposed of in an environmentally sound manner within thirty days from the date of off-loading. 27. On account of the manner in which the aforesaid liability or obligation is fastened upon the occupier, exporter or importer, the learned Additional Solicitor General contended that the Customs Authorities are not obliged to dispose of hazardous waste and that it is the responsibility of the second respondent to do it. 28. In the light of the rival contentions revolving around the provisions of the Customs Act, Major Port Trusts Act and Hazardous Wastes (Management and Handling) Rules, 1989, as extracted abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd respondent, may be entitled to disown the cargo by withdrawing the Bills of Entry, but they cannot disown their liability under the Hazardous Wastes (Management and Handling) Rules, 1989, atleast for 5 different reasons, which are enumerated and elaborated in the following paragraphs. 32. Reason No.: 1 This is not a case where some unknown person from an alien land has sent an unsolicited cargo in favour of an innocent person who had never ordered the import. This is a case where the material contained in the 40 containers in question, came as part of a large consignment (of 1000 containers), a major portion of which, was cleared by the second respondent. To put in a nutshell - (a) It was the second respondent who ordered the import of waste paper; (b) The import was from a regular supplier of the second respondent namely, M/s. Evergreen Specialities Inc, USA; and (c) The cargo was part of a large consignment, for which the second respondent had filed Bills of Entry. Therefore, the withdrawal of 2 Bills of Entry by the second respondent in respect of the 40 containers in question and their subsequent transhipment to UAE, cannot discharge the second resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation to dispose of the cargo under the Customs Act, 1962, it cannot have a bearing upon their obligation to dispose of the cargo under Rule 15(3) of the aforesaid rules. The Customs Act, 1962 and the Hazardous Wastes (Management and Handling) Rules, 1989, occupy different fields. Therefore, the absence of a statutory obligation under one of them cannot result in the obligation imposed by the other, getting wiped out. 37. The above conclusion is inevitable for the simple reason that the Customs Act, 1962 as well as the aforesaid rules, have their own definitions of the words importer and exporter. The word exporter is defined under Section 2(20) of the Customs Act as follows : (20) exporter , in relation to any goods at any time between their entry for export and the time when they are exported, includes any owner or any person holding himself out to be the exporter. The same word is defined under Rule 3(10) of the Hazardous Wastes (Management and Handling) Rules as follows : (10) exporter means any person under the jurisdiction of the exporting country who exports hazardous wastes and the exporting country itself, who exports hazardous wastes. Similarly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contrary, the second respondent complied with the said order and an export was made, though not to USA. Therefore, it is clear that the second respondent had no issue with being labelled as an importer in respect of the same cargo, when proceedings were taken under Section 124 of the Customs Act. Hence, the second respondent cannot now turn around and say that their role as an importer got extinguished with the re-export of the cargo to Ajman, UAE 41. Therefore, for all the above reasons, I hold that the second respondent has a statutory obligation under Rule 15(3) of the Rules to dispose of the cargo, if it is found to be hazardous. I make it clear that the question whether there is a contractual obligation for the second respondent towards the petitioner or anyone else is to be decided only in the civil suit. 42. Coming to the next question as to whether there had been a final determination of the hazardous nature of the goods, I find that pending the writ petition, the Commissioner of Customs arranged for an inspection of the cargo by the Central Pollution Control Board, in pursuance of an interim order passed. A Team of Officials of the Central Pollution Control Board ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is suggested - (a) The consignments are required to be kept in one of the Custom bonded warehouses, provided with adequate roof and necessary lining (made of HDPE) on floor so as to avoid entry of rain water and to direct contact of wastes with the soil and ground water, respectively. (b) As directed by the Hon ble High Court, Commissioner of Custom is to ensure that the proper care and necessary precautions need to be taken while transferring the container containing they wastes from the terminal of Tuticorin port to the Custom bonded warehouse. (c) In order to assess and estimate the composition and characteristics of the cargo, lying at Tuticorin port to facilitate suitable method of disposal, a Committee may be constituted drawing the experts from the organisations like IIT-Madras, NCL Pune, including the officials from CPCB, South Zonal Office, Bangalore, TNPCB, District Environmental Engineer Office, Tuticorin. (d) In case, the cargo, in question needs to be incinerated, Customs Authority shall ensure that the same is safely transported on land from port of Tuticorin to point of incineration under supervision of expert team, needs o be formulated. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer nominated by the fifth respondent. (c) lf the petitioner or the second respondent is able to get 35 containers of the same size and description for hire, they shall be permitted by the fifth respondent to transfer the cargo from the containers in question to the newly hired containers, again under the supervision of the officials of the Commissionerate of Customs, as had been done at the time of re-export to Ajman, UAE. After such transfer, the petitioner may take away their empty containers. (d) Within four weeks from this data, the fifth respondent shall have the cargo examined by the Team of Officials nominated by the Central Pollution Control Board for a final determination of the question as to whether the goods are hazardous in nature which could only be incinerated or disposed of otherwise. The cost of such examination shall be borne in the first instance by the second respondent. (e) If after the examination of the cargo, the Central Pollution Control Board comes to a final determination that it is hazardous, then the second respondent shall have the cargo incinerated or re-exported back to Evergreen Specialities Inc, USA or to any one else in any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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