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TMI Blog2019 (5) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/2018 2 C/21298/2018 Bedi Associates Rs. 1.6 lakhs No.88/2017-18 dt. 26/03/2018 3. C/21299/2018 Data Enterprises Rs. 1.6 lakhs No.89/2017-18 dt. 26/03/2018 4. C/21300/2018 Supreme Enterprises Rs. 1.5 lakhs No.86/2017-18 dt. 26/03/2018 5. C/21301/2018 Best Mega International Rs. 20 lakhs No.85/2017-18 dt. 26/03/2018 6. C/21581/2018 Rajesh N Kumar Khatterpal Rs. 10 lakhs -do- 7 C/21304/2018 Skylark Office Machines Rs. 2 lakhs No.90/2017-18 dt. 26/03/2018 8. C/21556/2018 Moksha Business Machines Rs. 3 lakhs No.10/2018-19 dt. 18/06/2018 9. C/21555/2018 Lakshmi Narayanan Rao Rs. 1 lakh -do- 10. C/21588/2018 Unistar Enterprises Rs. 2 lakhs No.87/2017-18 dt. 26/03/2018 11 C/21306/2018 Suresh Kumar Khettarpal Rs. 50,000/- -do- 2.1. The issue involved in all the cases relates to importation of used Multi-function Digital Photocopiers and Printers (MFD for short). The imports made by these eight importers at Cochin Customs were ordered for absolute confiscation by the adjudicating authority considering these imported goods as "prohibited" goods. After absolute confiscation, no option for redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not result in absolute confiscation of goods. He submitted that the importers were entitled to release of the imported goods even on payment of redemption fine and penalty. vi. Regarding enhancement of value carried out by the Customs Authorities, the appellant would not contest the issue. vii. In respect of penalties imposed on the proprietors as per Section 114AA of the Act, he submitted that once the importing firms are penalized, there is no justification for imposition of separate penalties on the proprietor. 3.2. Learned counsel further submitted that the imports of similar MFDs made in the same port were being permitted by the Customs authorities in the earlier period. In respect of similar imports made at the material time, certain appeals were considered by the Bangalore Bench of the Tribunal in the case of Parag Domestic Appliances & others decided vide Final Order No.21592-21594/2017 dt. 09/08/2017, the Tribunal took the view that the goods cannot be considered as prohibited goods and permitted release of the goods on payment of redemption fine and penalty @ 10% and 5% respectively. He further submitted that this decision of the Tribunal was challenged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3.7. Learned advocate also requested that the demurrage charges payable on the imported goods which now stands confiscated by the lower authorities, should also be waived in terms of Rule 6(l) of the Handling of Cargo in Customs Area Rules, 2009. 4. Learned AR supported the findings of the original authority. He emphasized that the enhancement of value as well as the violation of Import Trade control Regulations stands admitted by the appellants. He also submitted that the imported MFDs are clearly objectionable e9 waste as they are used items. The appellants have not satisfied all the conditions of Hazarduous Waste Rules, 2016. In any case, he added that the documents submitted in terms of the Rules are not complete. 5. We have heard both sides extensively and perused the appeal records. 6.1. The imports in the present cases are of second hand MFDs. Admittedly, the importers are not in possession of any authorization / licence issued by the DGFT for import of such goods. As such, the goods are liable for confiscation in terms of Section 111(d) as has been held by the lower authorities. But it is seen that the original authority has ordered for absolute confiscation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, repair, it will not make the product as waste. We have perused the certificates issued by the authorised Chartered Engineers, M/s. Best Mulyankan Consultants Ltd. and M/s. ELBI Consultancy (India) Pvt. Ltd., Chennai with reference to present impugned consignments. A perusal of these certificates will clearly show that the imported items cannot be considered as waste. It is specifically mentioned that the items imported are in full form and fit for use for printing A3 size papers and they are capable of being put to productive use and the machines were not in a damaged condition to such an extent which will compromise their functionaility. The residual life of these machines has been certified. In the face of these technical opinions and facts as recorded, we find that the imported items cannot be considered as waste. 10. Examining the conditionalities as mentioned in Hazardous Waste Rules 2016, we note the Schedule VIII (entry 4(j)) stipulates 5 documents to be produced by the importer. The first one is regarding country of origin which in the present case, the importer produced the certificate from Canadian authorities. We find force in the objection raised by the Revenue r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 size or above. As per the technical certificate issued by the Chartered Engineer, same stands fulfilled. In any case, there is no dispute on this fact in the impugned proceedings. The final condition is regarding acknowledgement copy of the annual return to be filed with State Pollution Control Board. We note that the appellant has to file the annual return at the end of the year and the same will be effected after the importation of goods. 14. Regarding applicability of Rule 13 of 2016 Rules, we note that the same deals with hazardous and other waste. In terms of definition of 'waste' in the rules, we find that used machines with residual life of 5 or 7 years cannot, per se, be considered as 'waste'. 15. In view of the above detailed analysis, we find that the importation of the impugned goods is in violation of Import Policy of the relevant time and also of some of the conditions of Hazardous Waste Rules 2016. The violation of Hazardous Waste Rules is with reference to country of origin certificate. Other conditions mentioned therein have substantially been fulfilled as discussed above." 6.2. In view of the above, we hold that the imported goods are liable for confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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