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TMI Blog2018 (10) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... f that the packing material used is in the prohibited category prescribed under Rule 5(d) and 5(g) of the Plastic Waste (Management And Handing) Rules, 2011, seized goods. The sample was drawn which was sent for testing to the Customs Chemicals Laboratory at Vadodara. As per test report dated 25.01.2012 and 02.04.2012, it was reported that the packing material is composed of Plastic, Paper and Aluminium. As against this, the supplier of packing material M/s Dhariwal packaging has also obtained test report dated 25.08.2011 from CIPET, a laboratory working under the Ministry of Chemical & Fertiliser which clearly suggested that the packing material was made of non-Polluting Polymers. The Revenue authorities also sought a report from CIPET, Chennai, wherein, identical view was expressed as to the nature of packing material used by the appellant. Further, the Revenue authorities had sought clarification from the Central pollution Control Board, wherein it was also clarified vide communication dated 27.04.2012 that the packaging material used by the appellant does not violated Rule 5(d) and 5(g) of the Plastic Waste (Management And Handing) Rules, 2011. Thereafter, the Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt And Handling) Rules, 2011. He also submits that the Commissioner (Appeals) in the first round of appeal before him remanded the matter to the adjudicating authority with a direction for re-testing of the goods by appropriate laboratory and if the presence of plastic is proven to be nothing but bio-degradable/ plastic and material goods in question shall not be covered by Rules, 5(d) and 5(g) of the Plastic Waste (Management And Handling) Rules, 2011 and export shall be permissible. He submits that the adjudicating authority in denovo adjudication passed the order in defiance of the above direction given by the Commissioner. He further submits that the appellant also approached the Hon'ble Supreme Court by way of writ petition wherein, the Hon'ble Supreme Court allowed the petition on submission of affidavit whereby the appellant was permitted the export goods even though the packaging material contains the plastic, the adjudicating authority has misinterpreted the order of the Supreme Court and said that the same is having prospective effect and not the retrospective. As regard, appeal of Shri R.M. Dhariwal, he submits that the appellant expired on 24.10.2017 and death certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appeal preferred by the appellant the Commissioner (Appeals) remanded the matter with a specific direction which is reproduced below:- "In my view, the adjudicating authority failed to appreciate the essence of these provision and letter of the Board, which is aimed at preventing used of hazardous material (non- biodegradable plastic in this case) and not the chemically proven biodegradable materials. The expression plastic can also cover the ploy lactic acid (polymer) as also become evident from the report of the chemical examiner, Vadodara. However, they become evident from the report of the chemical examiner, Vadodara. However, the reference to percentage of plastic gives an alternate impression that the sample may comprise of non-bio degradable plastic as well. In the circumstances, I can only hold that the test report is confusing and there is a need for proper re-testing, by appropriate laboratory, equipped to test such goods,, which request was not considered by the respondent department earlier. It is necessary to ascertain if the impugned goods contained only bio-degradable plastic/material, besides other materials like paper, aluminium etc. If the presence of plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate writ, order or direction declaring Rules 5(d) and 5(g) of the Plastic Wastes (Management & Handling) Rules, 2011 as being violative of Articles 14, 19(1)(g) of the Constitution and also ultra vires the provisions of the Environment (Protection) Act, 1986; and (iv) Grant such and further orders as may be deemed just and necessary in the facts and circumstance of the present case and in the interest of justice. 2. When the matter was listed before this Court on 13.10.2015, the following order was passed :" Learned Senior Counsel appearing for the Petitioner states that the facts that obtain in the present Petition are in pari material with and materially identical to those which existed in the Writ Petition No. 466 of 2011 titled "Baba Global Ltd. vs. Union of India". The Petitioner before us is also a 100% export oriented unit exporting Pan Masala, Gutkha and Tobacco across the globe. In Baba Global Ltd. by Order dated 03.09.2013 this Court had taken note of sundry undertakings given by the Petitioner therein, the principal one of which was that no part of the production would be sold or released in the local market in India. The Petitioner before us has filed a simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner shall stand exempted from the operation of the 2011 Rules on the understanding that it shall strictly abide by all the terms contained in the Undertaking furnished by it in terms of its Affidavit dated 28th July, 2015. As prayed for, Counter Affidavit be filed within six weeks from today. Rejoinder within four weeks' hence. Tag with W.P.(C) No. 856 of 2013. List thereafter." 3. The parties have completed their pleadings. 4. The learned senior counsel appearing for the Union of India (Ministry of Environment & Forest) submits that the undertaking would not be sufficient to meet the requirements under law. However, it is pointed out that on this ground though a review was filed, it was dismissed on 14.01.2016. 5. In that view of the matter, we confirm the order dated 13.10.2015 and allow the writ petition in terms of the order in Baba Global Ltd." Since the above judgement in the appellants case is based on judgements in the case of Baba Global Limited (Supra) the judgement in Baba Global is also reproduced below:- In this petition filed under Articles 32 of the Constitution, the petitioners have made the following substantive prayers: i. Issue writ of declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions mentioned hereinabove." Shri P.P. Malhotra, Learned Additional Solicitor General, on instructions, made a statement that in view of the undertaking given by the petitiners' representative, its unit will be exempted from the operation of the Plastic Wastes (Management and Handling) Rules, 2011. In view of the above, the writ petition is disposed of as in fructuous. From the above judgments it is observed that the Hon'ble Supreme Court has taken up clear view that if the goods are manufactured in 100% EOU and the said goods is exported and not cleared in the domestic market, the operation of Plastic Waste (Management and Handing) Rules, 2011 is exempted. The Hon'ble Supreme Court in this judgment laid down a principle that in case of export of goods the Plastic Waste (Management and Handing) Rules, 2011, is not applicable. Therefore, as per the judgments of Supreme Court even if the packaging material contains non Bio-degradable plastic but the goods is exported, the Plastic Waste (Management and Handing) Rules, 2011 shall not apply. We are of the view that as per the facts of the present case as discussed above and as per the Hon'ble Supreme Court judgments cited herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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