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TMI Blog2011 (10) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... public health and the environment - Decided against the assessee - W.P. No. 1452 OF 2011 - - - Dated:- 17-10-2011 - Dr D Y Chandrachud and A A Sayed , JJ Mr. M.M. Vashi i/b M/s. M.P. Vashi Associates for the Petitioners. Mr. R. Ashokan for Respondents 1 and 2. Ms. Naveena Kumai for Respondent No.3. JUDGEMENT Per : Dr Chandrachud: 1. The Petitioners have a factory at Raigad which manufactures carbon black, fuel oil and other products. The raw material in the manufacturing activity is stated to consist of used cut rubber tyres . The Petitioners claim to have the permission of the Maharashtra Pollution Control Board issued on 14 January 2011 (Exhibit B to the Petition). According to the Petitioners, under the customs tariff rules, import of used tyres with one cut falls under Open General License (OGL) and such goods are freely importable; the relevant entry being Item 4004 of Chapter 40 of the Customs Tariff. However, according to the Petitioners, tyres with multiple cuts and/or shredded tyres are restricted items which require a licence from the Director General of Foreign Trade. A copy of the licence issued by the Director General of Foreign Trade to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner of Customs and on behalf of the Third Respondent by the Deputy Director in the Ministry of Environment and Forests. 5. The First and Second Respondents have stated that public Notice 22/2009 was issued to provide a procedure for drawal of samples and testing of import consignments. The reason for the notice was that the volume of import and export trade has expanded over the last few years. The Customs Laboratories do not necessarily have the test equipment or facilities to conduct certain tests. Hence, in order to have a uniformity in approach for Laboratory testing, a committee was constituted for the three Customs Houses in Mumbai and pursuant to the recommendations of the Committee, the procedure for drawal of samples and testing was formulated for cargo of the normal type. However, paragraph 3.1 of the notice also covers special type of cargo such as vegetable oils and hazardous cargo. Hazardous cargo is inter alia governed by the Hazardous Wastes (Management, handling and Transboundary Movement) Rules 2008. In the present case, it has been stated that no live consignment of the Petitioners is pending and the Petitioners are raising academic issues, in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eumatic tyres , excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse are listed at entry B3140 in Part B of Schedule III of the Rules. Such products, it is stated, can be imported into the country only with the permission of Ministry of Environment and Forests. Similarly, tyres scrap (multi cut and/or shredded tyres) is also covered by item B3140 of Part B of Schedule III. On 11 January 2011 the Petitioners applied for permission to import 30,000 MT of end of life tyresscrap with multi cuts /shredded'. The application was considered by the Ministry of Environment and Forests and on 8 February 2011 a no objection was granted for the import of 20,000 MT of tyres scrap (multi cuts/shredded). Consequently, it has been submitted that if the Petitioners import more than 20,000 MT of tyres scrap, that would be illegal under the provisions of the Rules and would have to be re exported at the cost of the importer. 7. The basic submission which has been urged on behalf of the Petitioners, as amplified in prayer clause (a) of the Petition is that no permission or licence is required of the Third Respondent, Ministry of Environment and Forests, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Part B of Schedule III shall not require prior informed consent of the country from where it is imported. 10. Rule 16 lays down the procedure for the import of hazardous wastes. A person intending to import or transit for transboundary movement, hazardous wastes specified in Schedule III has to apply to the Central Government in respect of the proposed import with the prior informed consent wherever applicable and to send a copy of the application to the State Pollution Control Board. The State Pollution Control Board in turn has to forward its observations to the Ministry of Environment and Forests within thirty days. Under sub rule (2) of Rule 16, on receipt of an application the Ministry of Environment and Forests has to examine the application considering the comments and observations, if any, of the State Pollution Control Board. The Ministry of Environment and Forests may grant permission for import within a period of sixty days subject to the condition that the importer has (i) environmentally sound recycling recovery or reuse facilities; (ii) adequate facilities and arrangement for treatment and disposal of wastes generated; and (iii) a valid registration from the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 14(ii) only relaxes the requirement of a prior informed consent of the country from which goods specified in Part B of Schedule III are imported. However, the procedure prescribed in Rule 16 for the import of hazardous wastes has to be followed. Rule 16 makes it abundantly clear that the permission of the Union Ministry of Environment and Forests is necessary in respect of the import or transit for transboundary movement of hazardous wastes specified in Schedule III. The expression " transboundary movement"is defined by clause (za) of Rule 2 as follows : "(za) "transboundary movement"means any movement of hazardous wastes from an area under the jurisdiction of one country to or through an area under the jurisdiction of another country or through an area not under the jurisdiction of any country, provided at least two countries are involved in the movement." 13. Clearly any movement of hazardous wastes from an area under the jurisdiction of one country to an area under the jurisdiction of another country is covered by the expression " transboundary movement". In that view of the matter, the permission of the Ministry of Environment and Forests is required. 14. Prayer cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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