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TMI Blog2018 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 1992-97 through insertion of Sl.No.8 under Group H (Chemical and Allied Item) of Part II of the Negative List of imports, whereby Hazardous Wastes were placed in the Restricted List. The term Hazardous Wastes even then was not defined and the HSN aligned policy came into effect from 26.03.1996. In the HSN aligned policy which came into effect on 26.03.1996 there was an import licensing note in which it was inter alia stated that Hazardous Wastes will be permitted for import only against the licence for the purpose of processing and reuse. It was taking into account, these aspects that the import licence as well as authorization from the respective State Pollution Control Boards under Rule 11 of the Hazardous Wastes Rules was insisted upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the appellant is engaged in distillation of waste oil; being equipped with vacuum distillation process. The appellant imports waste oil from abroad and converts it into lubricating oil at its factory premises. By Bill of Exchange dated 12.12.1996 the appellant imported waste oil as it had been doing, from 1993 onwards. The appellant had also carried on these imports under Open General Licence (for short "OGL"). On filing Bill of Entry dated 12.12.1996 the Customs authorities however, refused clearance, finding that the waste oil is a hazardous material as defined under Rule 11 of Hazardous Wastes (Management and Handling)Rules, 1989 and hence required a special permit under Rule 11. The goods could not have been imported by an OGL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector of Customs [1990(47) E.L.T 161 (SC)] is pressed into service. Therein the appellant had imported stone slabs for home consumption which were suspected to be "marble"; which item was restricted and could not be imported by OGL. The Hon'ble Supreme Court found bonafides on the appellant in having imported the goods; taking it to be stone slabs. Here the contention is that the appellant had all along been importing waste oil, by OGL and only this consignment was refused to be cleared. Reliance was also placed on 1970(1) SCR 753 [Hindustan Steel Ltd. v. State of Orissa; wherein the requirement of mens rea for imposition of penalty was insisted. 6. The declaration in Akbar Badruddin Jiwani is not at all applicable to the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the ITC Schedule as well as in the list of restricted items. On a conspectus of the various decisions referred and in the context of the restriction, the definition of "marble", it was found cannot concede to, how it is known commercially in trade parlance. It was held that the calcareous stones imported by the appellant cannot be held to be marble as they had not been recrystallized and metamorphosed in the geological and petrological sense of the term. Having found so, the Hon'ble Supreme Court held that even if it is taken for argument sake that the imported article is marble, there can be no malafides found on the importer. 8. We do not think that the said decision has any application herein. In the present case, the only con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste oil was a prohibited item under the Rules. That Hazardous Wastes imported for the purpose of recycling required a valid import licence and authorisation from the SPCB cannot now be disputed at all. The appellant only relies on the imports made earlier to prove its bonafides. Hindustan Steel Ltd.(supra) also has no application since the liability incurred is a civil liability; attracted on the import made of a restricted item without license and authorisation. 10. The further contention taken is on the strength of the Madras High Court decision reported in 1983(12)ELT 322 (Mad) B. Lakshmichand v. Government of India. That was a case in which the penalty was set aside on the ground that the provision alleged under Section 112 was not spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable under Section 112, which though not specifically mentioned is clear from the reference to Section 111(d). We also notice that the penalty imposed is in lieu of confiscation for reason of the goods not being available for confiscation. It is the admitted position that after the re-export was declined, the goods stored in containers in the premises of the appellant leaked out and the appellant's factory itself is closed down. We also notice the fact that the Bill of Entry dated 12.12.1996 produced as Annexure A shows a total cost of ₹ 10,62,612/- In such circumstances, the penalty imposed in lieu of confiscation is in fact a flea bite on the appellant, who was liable to confiscation of the goods imported. The appeal would s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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