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TMI Blog2019 (11) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and disputed in the present appeal and it was held that there was no absolute confiscation and approximately 10% of the value of the goods was imposed as redemption fine in the similar facts and circumstances. Penalty of 5% of assessable value was imposed in the similar facts and circumstances - The said decision of Tribunal was approved by the Hon ble Apex Court. Changes made in the policy vide Notification No. 5/2015-2020 dated 07 May 2019 - HELD THAT:- It is seen that the said changes are subsequent to the date of import thus, have no impact on the present proceedings. Consequently, the appeal filed by Revenue seeking confiscation of goods absolutely is dismissed. Revision of assessable value on the strength of Chartered Engineer certificate - HELD THAT:- There are no merit in the above observation. The impugned order itself finds flaws in the Chartered Engineer certificate as the Chartered Engineer failed to obtain current market value of the said goods. The impugned order also does not indicate the Rule under which the value was revised. In these circumstances, revision of value by the lower authorities is not sustainable for want of evidence. The declared value is ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egularly. He has given the detailed list of goods imported and released by Customs after the aforesaid consignment which was seized and confiscated. He argued that in that context, the appeal of the Revenue is contrary to its practice of releasing the goods during subsequent period. Learned Counsel also relied on the decision of the Hon ble Apex Court in the case of Commissioner of Customs vs. Atul Automation Pvt. Limited 2019 (365) ELT 465 (SC). He however, could not produce copies of the order of Tribunal or High Court in the said case. Learned Counsel further pointed out that the sole evidence relied on for enhancing the value of the goods is the report of empanelled Chartered Engineer certificate. The lower authorities have not relied on any rule the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, while re-determining the value. In fact, the discussion and findings in the order-in-original does not contain any ground for enhancing the value. The impugned order also does not give any reason for discarding the declared value. 4. Learned Counsel relied on the decision of the Hon ble Apex Court in the case of Atul Automation Pvt. Limited 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g importation being in violation of Import Policy, the same being an admitted fact, does not require further elaboration. On the second point regarding violation of provisions of Hazardous Waste Rules, 2016, we have carefully examined the submissions of the appellants. First of all, we note that the original authority held against the appellants substantially on the ground that the product is waste. In this connection, we have perused the definition waste . Rule 3(1)38 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 defines waste as under:- waste means materials that are not products or by-products, for which the generator has no further use for the purposes of production, transformation or consumption. 9. We note that the products under import are MFDs having use as digital multifunctional devices as intended. It is not clear as to how when the product imported in the form of whole machine and having certified functional life of 5/7 years, the same can be considered as waste. Even if the items imported require certain reconditioning, repair, it will not make the product as waste. We have perused the certificates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on application to the Pollution Control Board and a time line is prescribed for the same. After considering these time lines, the Committee decided that the implementation of EPR can start from 01/05/2017 and advised the Customs authorities to permit clearance of the imported goods without EPR authorisation till 30/04/2017. 12. Regarding Schedule III Part D of the Hazardous Waste Rules, 2016, we note that the said part deal with list of other waste for import and export without permission of Ministry of Environment. Entry No.B1110 deals with electrical and electronic assemblies destined for direct reuse and not for recycling or disposal. The condition for import of used MFDs was mentioned therein. The said condition was later amended vide Notification dt, 06/07/2016. The effect of amendment is that the trader also can import the said MFDs which are not domestically manufactured. 13. Regarding production of EPR authorisation under 2011 Rules, we note that the appellant has produced an authorisation dt. 21/04/2017 issued by the Central Pollution Control Board. Another condition is the MFDs shall be for printing A3 size or above. As per the technical certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Horizon Ferro Alloys Pvt. Ltd. Vs. UOI [2016(340) ELT 27 (P H)] examined the scope of Section 125 and observed as below:- 5 . ..... ..... .....Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon ble Madras High Court in T. Elavarasan, 2011 (266) E.L.T. 167 (Mad.), was pleased to rely on the said judgment of Hon ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. In the context of Section 125 if the word prohibited is construed as to apply in respect of every violation of any regulation or restriction or statutory procedural requirement, the word shall in said Section would be rendered redundant and meaningless. If the definition of prohibited goods is applied in the context of Section 125, it would result in absurdity rendering the word shall redundant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the redemption fines of 20% / 22% are harsh. Considering the detention / demurrage charges for one year, as the goods were lying in Port, and also based on past practice in such cases, he pleaded for reduction of fines. 19.1. We note that Hon ble Kerala High Court in Office Devices [2009(240) ELT 336 (Ker.)] and in Navpad Enterprises [2012(278) ELT 172 (Ker.)] held that the discretion vested under Section 125 of Customs Act should be exercised in an objective manner. In the present case, no detailed reasoning has been recorded in the impugned order for fines which are apparently on the higher side when compared to consistent practice of imposing 10% of value as fine. We also have to bear in mind the detention charges to be incurred on goods. The guiding principle for fixing the quantum of redemption fine when the goods were allowed to be cleared for home consumption is generally that the importer should not gain out of imported goods which were in violation of the applicable law. Keeping that principle in mind, the margin profit likely to be earned by the appellant through such act which is in contravention of law is sought to be diminished or removed. Having n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed under Section 112(a) are reduced to ₹ 25 lakhs (Rupees twenty five lakhs only) for M/s. Atul Automation Pvt. Ltd. and ₹ 5 lakhs (Rupees five lakhs only) on Shri Ketan Kamdar. The penalties imposed under Section 112(a) on M/s. Parag Domestic Appliances is reduced to ₹ 7 lakhs (Rupees seven lakhs only) . It is seen from the said decision that there was no absolute confiscation and approximately 10% of the value of the goods was imposed as redemption fine in the similar facts and circumstances. Penalty of 5% of assessable value was imposed in the similar facts and circumstances. The said decision of Tribunal was approved by the Hon ble Apex Court. The Hon ble Apex Court dismissed the appeal filed by Revenue citing following grounds:- 7 . We have considered the submissions on behalf of the parties. The MFDs were imported in October-November, 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015- 2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules. 8 . Clause 2.01 of the Foreign Trade Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o redemption of the consignment on payment of the market price at the reassessed value by the Customs authorities with fine under Section 112(a) of the Customs Act, 1962. 10 . The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the Customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as other wastes under Rule 3(1)(23) of the Waste Management Rules, which reads as follows :- Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country. 11 . Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the decision of the Tribunal. Perusal of the Para 9 and 13 of the Hon ble Apex Court decision does not indicate that Hon ble Apex Court has sought to enhance redemption fine equal to market value of the goods. The Tribunal had directed release of goods at redemption fine of approximately 10% of the assessable value of the goods and imposition of penalty at the rate of 5% of the assessable value of the goods. In that context, the Revenue has inappropriately attempted to rely on and the selectively pick up words, out of context from the decision of Hon ble Apex Court. 9. The next issue relates to revision of assessable value on the strength of Chartered Engineer certificate, the impugned order records the following for the purpose of approving the enhanced value on the strength of Chartered Engineer certificate:- 3 . Further Shri Rajesh John in his report dated 18.09.2018 stated that despite best efforts, CIF value of the new machines in the year of manufacture could not be found by browsing Internet and referred websites but he suggested the price which revealed significantly higher values of identical/similar goods. Thus the transaction/declared value ..... 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