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TMI Blog2013 (9) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... eign Trade Policy - the assesses were willing to pay reasonable amounts of fine and penalty for such imports as had been done in the past - goods cannot be considered as hazardous waste - orders are set aside and all the four appeals were remanded to the original authority for the limited purpose of re-adjudicating the cases for violation of Foreign Trade Policy and for allowing clearance on payment of applicable duty and reasonable amounts of fine and penalty to be determined by him – Confiscation order sustained – Redemption allowed after submission of fine – Penalty sustained – decided partly in favor of assesse. - C/3114/2011, C/3135/2011, C/3136/2011, C/432/2012 - - - Dated:- 10-7-2012 - Shri P. G. Chacko and Shri M. Veeraiyan, JJ. For the Appellant: Mr. Ganesh Haavanur, Addl. Commissioner (AR) For the Respondent: Mr. P.A. Augustian, and Mr. N. Viswanathan, Advocates JUDGEMENT Per: P.G. Chacko: These are appeals filed by the Commissioner of Customs against orders passed by the Commissioner of Customs (Appeals). Appeal wise, the facts are summarized below:- Appeal No. C/3114/2011 2. The respondent, M/s. Deccan Enterprises, had filed a Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y found the goods to be hazardous-waste and confiscated the same in terms of Section 111(d) and (m) of the Customs Act read with the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (the Hazardous Wastes (MHTM) Rules, 2008, for short) and also read with Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 but allowed redemption of the goods against payment of fine of Rs.1 lakh subject to further condition that the goods on redemption be re-exported under Rule 17 of the Hazardous Wastes (MHTM) Rules, 2008 to the country of origin. The adjudicating authority also imposed a penalty of Rs.1 lakh on the respondent under Sections 112(a) and 114AA of the Customs Act. Aggrieved by the Order-in-Original, the party preferred an appeal to the Commissioner (Appeals) and the latter passed the impugned order wherein (a) the goods in question were held not to be hazardous waste and hence not liable to be re-exported; (b) the confiscation of the goods was upheld with an order for its release for home consumption on payment of appropriate duty and redemption fine of Rs.2 lakhs and (c) the penalty of Rs.1 lakh imposed on the respondent was sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was issued to the respondent by the DRI and, in adjudication thereof, the original authority found the goods to be hazardous-waste and confiscated the same in terms of Section 111(d) and (m) of the Customs Act read with the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (the Hazardous Wastes (MHTM) Rules, 2008, for short) and also read with Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 but allowed redemption of the goods against payment of fine of Rs.1 lakh subject to further condition that the goods on redemption be re-exported under Rule 17 of the Hazardous Wastes (MHTM) Rules, 2008 to the country of origin. The adjudicating authority also imposed a penalty of Rs.50,000/- on the respondent under Sections 112(a) and 114AA of the Customs Act. Aggrieved by the Order-in-Original, the party preferred an appeal to the Commissioner (Appeals) and the latter passed the impugned order wherein (a) without recording any categorical finding on the question whether the imported goods could be held to be hazardous waste, the lower authority s order of confiscation with direction for re-export was set aside and (b) it was concluded thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computers have to be refurbished and if the non-functional computers have to be made re-usable it will result in heavy amount of e-waste generation. As such, the report only expresses an apprehension if the imported goods are taken for refurbishing. The present importers are traders and they, according to the learned Advocate are not going to do any refurbishing, but simply sell the imported goods for which there is a market available. He states that poor people cannot afford new brands of computers and they make do with cheaper and obsolete computers imported from abroad and sold in the domestic market at a cheaper price. Such used computers are also used in computer training centres. 8. Apart from the fact that the Chartered Engineer is not competent to certify what is or is not hazardous waste', he has not even so certified the consignments to be hazardous waste. Hazardous waste is a term defined under the Rules made under the Environment (Protection) Act, 1986 but the term e-waste is not so defined. According to the learned Advocate, a draft notification has since been circulated to bring into the ambit of hazardous waste what is proposed to be covered under the term e-wast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating such used computer systems as hazardous waste. 11. The learned Advocate fairly concedes that secondhand personal computers / laptops cannot be freely imported under para 2.17 of the Foreign Trade Policy and hence the appellants are willing to pay reasonable amounts of fine and penalty for such imports as has been done in the past. 12. In view of the foregoing, I am of the view that the impugned goods cannot be considered as hazardous waste. Accordingly, the impugned orders are set aside and all the four appeals are remanded to the original authority for the limited purpose of re-adjudicating the cases for violation of para 2.17 of the Foreign Trade Policy and for allowing clearance on payment of applicable duty and reasonable amounts of fine and penalty to be determined by him. 8. As rightly submitted before us by the learned counsel for the respondents, the above decision of the Tribunal is squarely applicable to the facts of these cases. Therefore, there is no valid reason to interfere with the view taken by the appellate Commissioner in the cases of M/s. Divine International Ltd., M/s. Deccan Enterprises and M/s. Asian Copiers. As rightly held by the appellate Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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