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TMI Blog2010 (7) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy Scrap Trading, UAE and filed Bill of Entries as detailed below : S. No. B/E No. Date Quantity CIF Value 1 29 dated 7-4-97 1764 Drums 7,65,238 2 88 dated 28-4-97 980 Drums 4,25,131 3 121 dated 2-5-97 1372 Drums 5,93,867 4 122 dated 2-5-97 1372 Drums 5,93,867 4.1 The department was of the prima facie view that the used lubricating oil was hazardous waste oil as referred to in Serial No. 10 of the Schedule to the Hazardous Waste (Management Handling) Rules, 1989 and the same have been imported without NOC certificate from the Pollution Control Board as used waste lubricating oil. The department drew samples and forwarded them to Chemical Examiner CRCL in Delhi and also to Punjab Test House, Ludhiana seeking to ascertain as to whether, "(1) It is the "waste oil oil emulsion" as specified against waste category No. 10 to schedule to the Hazardous waste (Management Handling) Rules. (2) It is hazardous or toxic waste as envisaged under the said rules. (3) The sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, since the goods were not available for confiscation, he imposed a redemption line of Rs. 6,00,000/- and ordered the same to be appropriated from the Bank Guarantee furnished by the appellants. He also imposed a penalty of Rs. Five lakh on the proprietor of the appellants. 5.1 Learned Advocate for the appellants submits the following : They have imported used oil; the said oil cannot be treated as waste oil. In other words, every used oil cannot be treated as waste oil. S. No. 10 of the schedule to the Hazardous Waste (Management and Handling) Rules, 1989 refers only to waste oil. He contends that what they have imported is only used oil, the same cannot be treated as waste oil and they are not required to produce NOC certificate from Pollution Control Board. The report of CRCL is also referring to imported items as used lubricating oil and it also says that the same is not oil emulsion. The report of Punjab Test House clearly gives a finding that the imported goods are neither waste oil nor oil emulsion. In these circumstances, the requirement of NOC is not warranted. 5.2 He also refers to Cenvat Credit Rules wherein in the context of removal of capital good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that communication from the Pollution Control Board is to the effect that even used oil requires no objection certificate from Pollution Control Board for the purpose of import and that no such permissions is being given to any traders. He draws my attention to the show cause notice where specifically allegation was made that they did not have valid no objection certificate and that they did not have the evidence of being actual users and this fact has not been contradicted by any evidence by the appellants before the original authority. The original authority has also clearly held that the appellant, as a trader has imported these consignments in the absence of no objection certificate from State Pollution Control Board and that they had no authorisation of handling hazardous waste. A mere averment in the appeal memorandum, without supporting any evidence, that they are in the manufacture of re-refining lubricating oil and industrial oil do not make them as actual user and not a trader. He also submits that the appellants have unauthorisedly removed and disposed of the goods entrusted to them in supardari. No evidence whatsoever has been produced by them before the original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no need for recommending to the Department to seek the views of the Ministry of Environment and Forests. Opinion of the Ministry of Environment and Forests is not specific with reference to any samples drawn from the present consignments but based on the understanding of the law. In other words, if waste oil was imported, then all the conditions stipulated in the clarification of the Ministry of Environment and Forests requires to be adhered to. 7.5 The Department seeks to rely on the clarification dated 17-12-1997 by "In-charge of Pollution Control Board" that authorisation for the import of used lubricant oil for trading purpose has been refused as there was no provision in the rules to give such permission/authorisation for import of waste oil for trading purposes. This clarification is in the nature of opinion based on presumption that there is no difference between used lubricating oil and waste oil. It does not quote the relevant provisions by which the used lubricant oil is sought to be treated as waste oil. Therefore, the reliance placed by the department on the opinion of the Punjab Pollution Control Board cannot support their case. 7.6 Regarding the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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