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TMI Blog2014 (11) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 of the Hazardous Wastes Rules, to decide whether the item imported into India by the petitioner, falls within Entry B 1110 under Part B of Schedule III to the Hazardous Wastes Rules. Hence, the refusal of the respondents to permit the provisional release of the goods is not in accordance with law. The Customs Act, 1962, provides for provisional release. Even the Foreign Trade (Regulation) Rules, 1993 allows redemption of confiscated goods under Rule 17(2). No proceedings have been initiated by an authority competent in terms of the Hazardous Wastes Rules for directing the petitioner to re-export the goods. Therefore, the petitioner is entitled to the release of the goods provisionally - Decided in favour of assessee. - Writ Petition No. 16288 of 2014 and MP. No. 1 of 2014 - - - Dated:- 8-10-2014 - V. Ramasubramanian,JJ. For the Petitioner : Mr. N. Viswanathan For the Respondents : Mr. V. Sundareswaran, Senior Panel Counsel ORDER Under an invoice dated 03.3.2014, the petitioner imported a consignment of 129 packages of old and used Digital Multifunction Print and Copying Machines of various models for a declared value of USD 8201.6375 (CIF). They also fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner made an application on 27.8.2013 seeking permission for the import of used Digital Multifunction Print and Copying Machines. The request of the petitioner was placed before the Export Facilitation Committee, in a meeting held on 19.12.2013 and the Committee decided to reject the case as per the recommendation of the Department of Industrial Policy and Promotion under the Office Memorandum dated 03.10.2013. The decision of the Export Facilitation Committee was communicated to the petitioner by a letter dated 03.01.2014. The only reason stated in the said communication for the rejection of the request of the petitioner was that the second hand equipment would become obsolete/junk very fast and that the disposal of such junk equipment would pollute the environment. 8. But, despite such a rejection order communicated on 03.01.2014, the petitioner appears to have raised an invoice on 03.3.2014 and filed a Bill of Entry on 26.5.2014. According to the petitioner, they had placed orders much before the rejection of their request and that those items were kept for the raising of invoice and for transhipment at the Foreign Port before the rejection order. Hence, it is claimed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 read with Sub-Section (3) of Section 3 and 11 of Foreign Trade (Development and Regulation) Act, 1992 and Rules and Orders issued thereunder read with Paragraph 2.17 of Foreign Trade Policy 2009-14 as amended vide DGFT Notification No.35/(RE-2012)/2009-14 dated 28.2.2013 read with Rule 16 of the Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. (e) Penalty should not be levied under Section 112(a) of the Customs Act, 1962. Since the writ petition was filed on 23.6.2014 and the show cause notice is dated 27.6.2014, the petitioner has not dealt with the same in this writ petition. 10. The Respondents have filed a counter affidavit contending inter alia (1) that in terms of Board Circular No.27/2011, dated 04.07.2011, the import of goods covered under Entry B 1110 of Part B of Schedule III of the Hazardous Material (Management, Handling and Transboundary) Rules, 2007, such as second hand computers/electronic assemblies require the permission of the Ministry of Environment and Forests; (2) that as per para 4 of the clarification issued on 30.11.2011 to the Tamil Nadu Pollution Control Board, the Director, Ministry of Environment and Forests, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnizes the fact that even prohibited goods could be imported or exported subject to certain conditions. If those conditions are fulfilled, prohibited goods would automatically become non-prohibited goods. 15. Section 11 of the Act empowers the Central Government, by Notification in the official gazette, to prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance of the import or export of goods of any specified description. The expression illegal import is defined in Section 11A(a) of the Customs Act, 1962 to mean the import of any goods in contravention of the provisions of the Customs Act or any other law for the time being in force. 16. What is to be done if goods are improperly imported into or exported outside India, is spelt out in Chapter XIV. Section 111, which makes certain goods liable for confiscation, states that any prohibited goods brought into any bay or any goods which are imported contrary to any prohibition imposed or under the Customs Act, 1962 or any other law for the time being in force, are liable for confiscation. Under Section 112, the person guilty of improper importation of goods is also made liable for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of goods prescribed in Section 150(1) seems to apply only to goods which are not confiscated. Therefore, the answer to the question as to what happens to the confiscated goods whose possession is taken by the adjudging officer is not found in Customs Act, 1962. THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992: 19. After the economy of the country underwent a transition in the year 1991, the Parliament enacted the Foreign Trade (Development and Regulation) Act, 1992. The object of the Act was to provide for the development and regulation of Foreign Trade by facilitating imports into and augmenting exports from India. Under Section 3 of the said Act, the Central Government was empowered to pass two types of orders namely: (1) orders making provision for the development and regulation of Foreign Trade by facilitating imports and increasing exports; and (2) orders making provision for prohibiting, restricting or otherwise regulating the import or export of the goods. Any order passed under Section 3(2) of the said Act prohibiting, restricting or otherwise regulating the import or export of goods, would make those goods, by virtue of Section 3(3) Foreign Trade (Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of redemption charges under Section 11(9) of the Act. This provision appears to be in tune with Section 125(1) of the Customs Act, 1962. FOREIGN TRADE (REGULATION) RULES, 1993: 22. Rule 17 of the Foreign Trade (Regulation) Rules, 1993, deals with confiscation and redemption. It reads as follows: RULE 17. Confiscation and redemption:- (1) Any imported goods or materials in respect of which -- (a) any condition of the licence, or letter of authority under which they were imported relating to their utilisation or distribution; or (b) any condition relating to their utilisation or distribution, subject to which they were received from or through, an agency recognised by the Central Government; or (c) any condition imposed under the Policy with regard to the sale or disposal of such goods or materials, has been, is being, or is attempted to be, contravened, shall together with any package, coverage or receptacle in which such goods are found, be liable to be confiscated by the Adjudicating Authority, and where such goods or materials are so mixed with any other goods or materials that they cannot be readily separated, such other goods or materials shall be liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctrical and Electronic Assemblies scrap (including printed circuit boards) not containing components such as accumulators and other batteries included in list A, mercury - switches, glass from cathode-ray tubes and other activated glass and PCB - capacitors, or not contaminated with constituents such as cadmium, mercury, lead, polychlorinated biphenyl or from which these have been removed, to an extent that they do not possess any of the constituents mentioned in Schedule 2 to the extent of concentration limits specified therein.**** Electrical and Electronic Assemblies (including printed circuit boards, electronic components and wires) destined for direct re-use and not for re-cycling or final disposal. 25. It is pertinent to note that there are stars (single, double, triple or four) assigned to some of the items in the Table below Schedule III. The significance of these stars is indicated at the bottom. If an item is assigned four stars, it means that the import of the said item is permitted in the country by the actual users with the permission of the Ministry of Environment and Forests and a licence from the Director General of Foreign Trade. It is also indicated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom where it is imported. Rule 16 provides the procedure for import of hazardous wastes. Rule 17(1) makes the import of hazardous wastes into India illegal, if it was made without the permission of the Central Government in accordance with these Rules. Under Sub-Rule (2), the importer is obliged to re-export the waste in question at his cost within 90 days from the date of its arrival, in the case of an illegal import of hazardous wastes. The Authorities competent to do the same are specified in Schedule VII. Therefore, the obligation to re-export an imported item arises only out of Rule 17(2) of the Hazardous Material (Management, Handling and Transboundary Movement) Rules and not out of the Customs Act or the Foreign Trade (Development and Regulation) Act. Consequently, if the petitioner had to be directed to re-export what was imported by him, it could be done only by the Authorities specified in Schedule VII. Till date, no action under these Rules has been initiated by any of the Authorities listed in Schedule VII to the Hazardous Waste Rules. 29. The Ministry of Environment and Forests, which is named as the Nodal Ministry under Rule 12 of the Hazardous Wastes Rules, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such circumstances, I do not think that any of the respondents herein is competent, to order the re-export, even though they are competent to order confiscation. As a matter of fact, no samples have been drawn as per Rule 16 of the Hazardous Wastes Rules, to decide whether the item imported into India by the petitioner, falls within Entry B 1110 under Part B of Schedule III to the Hazardous Wastes Rules. Hence, the refusal of the respondents to permit the provisional release of the goods does not appear to be in accordance with law. 34. As I have stated earlier, the Customs Act, 1962, provides for provisional release. Even the Foreign Trade (Regulation) Rules, 1993 allows redemption of confiscated goods under Rule 17(2). No proceedings have been initiated by an authority competent in terms of the Hazardous Wastes Rules for directing the petitioner to re-export the goods. Therefore, the petitioner, in my considered view, is entitled to the release of the goods provisionally. 35. In view of the above, the writ petition is allowed, directing the respondents to assess and permit the provisional release of 129 units of second hand Digital Multifunction Print and Copying Machin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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