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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 ..... e redemption fine and penalty to be imposed on the importers. We adopt the same yardstick in arriving at the redemption fine and penalty and order that imported goods may be allowed for clearance on payment of redemption at 10% and penalty 5% of the re-assessed value, besides payment of applicable Customs duty. Imposition of penalty under Section 114AA of FA - HELD THAT:- The proprietor is not different from the proprietory firm. Since the importing firm already stands penalized under Section 112(a) of the Act, we find no requirement to impose separate penalty on the proprietor under Section 114AA. Hence, penalties imposed on the proprietors are set aside. Appeal disposed off. - C/21301/2018-DB, C/21297/2018-DB, C/21300/2018-DB, C/21298/2018-DB, C/21299/2018-DB, C/21304/2018-DB, C/21555/2018-DB, C/21306/2018-DB, C/21556/2018-DB, C/21581/2018-DB, C/21588/2018-DB - Final Order No. 20330-20340/2019 - Dated:- 3-4-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. V. PADMANABHAN, TECHNICAL MEMBER Shri N. Viswanathan Advocate For the Appellant Shri Gopakumar, Jt. Commissioner (AR) For the Respondent ORDER P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unistar Enterprises ₹ 2 lakhs No.87/2017-18 dt. 26/03/2018 11 C/21306/2018 Suresh Kumar Khettarpal ₹ 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 was extended to the importers. The adjudicating authority further imposed penalties on the importers under Section 112(a) of the Customs Act, 1962 for imports made in violation of various provisions. In certain cases, penalties have also been imposed on the proprietors of the importing firms under Section 114AA read with Section 112(a) of the Customs Act, 1962. 2.2. The MFDs imported were old and used. The Customs authorities took the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietors 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 Revenue before the Kerala High Court at Kochi ; the same was upheld and release of the goods was ordered. The Revenue further carried the issue before the Hon ble Supreme Court who decided the issue in Civil Appeal No.1057-1059 of 2019 dt. 24/01/2019. The Apex Court finally upheld the order of the Tribunal with the observation We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 these goods without extending option to the importers to redeem the goods on payment of redemption fine and penalties. We have carefully considered the decision cited by the appellants by the same Bench in the case of Parag Domestic App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy (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 regarding the non-applicability of such certificate to the present consignments. The consignments have originated from China / Korea / Japan as admitted by the importer and wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 confiscation under Section 111 (d) of the customs Act, 1962. Next, we turn to the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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