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TMI Blog2019 (12) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... in which it is framed and it is not open to the adjudicating authority or the Tribunal (who are creatures of the statute) to stretch, modify or restrict the scope of this Section; they are bound by it. Classification of goods - HELD THAT:- It is submitted that, there is no misdeclaration on his part because the right classification for the impugned goods is CTH 85414011 - both the authorities have mis-read and mis-construed the reports submitted by the IISc., CPCB and KSPCB. In fact out of the 3 reports, the crucial and relevant is the report submitted by the KSPCB because their officers visited the spot and after physical verification, they have observed in their report dt. 31/10/2017 that the cut pieces of solar cells of silicon wafers may be used for various solar applications like assembling of solar lantern, solar light etc. As per the settled law, the burden of classification is on the Department and in the present case, the Department has not made any effort to prove the same by any documents except the proceeding to classify the impugned goods as waste and scrap solely considering breakage of some of the imported goods and without considering the nature of usage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re re-examined the imported goods on 30/06/2017 and also recorded the statement of Shri Mohammed Asif, the Managing Partner of the appellant and also recorded the statement of Shri D. Narendra, CEO of the Customs Broker s firm M/s. Access Worldwide Cargo on 03/07/2017. In the meantime, the appellant imported another consignment measuring 7214 kgs of solar cells Uneven cut assorted solar cells valued ₹ 15,85,352.07 from Germany and filed Bill of Entry No.2398537 on 11/07/2017 for home clearance by assessing the goods to customs duty of ₹ 2,85,363/- and claiming exemption from Basic Customs Duty under Notification No.24/2005-Cus. The said import was also subjected to investigation by the SIIB and they again recorded the statement of Shri Mohammed Asif. Thereafter the officers of SIIB drew representative samples of both the consignments on 24/07/2017 and forwarded the same in envelope to the Indian Institute of Science, Bangalore (IISc, for short) for analysis. The IISc, Bangalore vide its report dt. 08/08/2017 clearly indicated that the samples sent in envelop were broken pieces of solar photovoltaic cells. Thereafter the officers of SIIB vide their letter dt. 21/07/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court vide its order dt. 13/06/2018 granted interim stay for disposal of the goods and subsequently vide order dt. 10/10/2019 disposed of the Writ Petition with a direction to the Tribunal to dispose of the appeal in an expeditious manner. Aggrieved by the order passed by the Additional Commissioner, the appellant has filed the appeal before the Commissioner(Appeals) and the Commissioner(Appeals) vide Order-in-Appeal dt. 13/11/2018 rejected the appeal by upholding the order passed by the Additional Commissioner. Hence the present appeal. 3. Heard both sides and perused the records. 3.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts, documentary evidence on record, without seeing the statutory provisions of the Customs Act and the Hazardous and other Wastes (Management Transboundary Movement) Rules, 2016. He further submitted that the order for re-export the goods on payment of redemption fine within 30 days and / or disposal of the goods at the cost of the appellant is in excess of the statutory provisions and hence, the same is in excess of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and hence, entire quantity of 13599.5 kgs cannot be held as waste and scrap. He also submitted that the fact of breaking of imported consignment due to mishandling is further corroborated by the report of the IISc dt. 08/08/2017. It is pertinent to note that the samples drawn during the course of investigation were sent in envelope cover which clearly shows the manner of investigation conducted by the investigating authority in the present case. He further argued that Schedule III of the Hazardous and other Wastes (Management Transboundary Movement) Rules, 2016 covers the Hazardous Waste and Other Waste which can be imported with or without permission. However, in the said Schedule, nowhere it covers the small solar cells or waste / scrap of solar cells. Further the Hazardous Waste and other waste listed in Schedule III can be imported after prior permission and hence, the imported small solar cells or waste/scrap of solar cells cannot be considered as prohibited for import. He also referred to the Press information Bureau, Ministry of Environment and Forests of the Government of India vide their decision dt. 05/03/2016 has re-categorised the white industries which do not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submission, he relied upon the following decisions:- i. Singhla Sales Corporation Pvt. Ltd. Vs. CC, Amritsar [2002 (141) ELT 806 (Tri. Del.)] ii. MP Dyechem Industries Vs. CC, Bhopal [2002(139) ELT 656 (Tri. Del.)] iii. Hindustan Ferodo Ltd. Vs. CCE [1997(89) ELT 16 (SC)] iv. UOI Vs. Garware Nylons Ltd. [1996(87) ELT 12 (SC)] v. Kapadia Enterprises Vs. CCE [2001(131) ELT 494 (Tri.)] 3.2. The learned counsel also made an alternative submission that in any case, if for argument sake that if the import of impugned goods requires prior permission from any of the authorities, then non-obtaining of prior permission is only a procedural lapse which can be rectified any time before clearances of the imported goods. For this submission, he relied upon the following decisions:- i. Jeevan Disels Electricals Ltd. Vs. CCE, Puducherry [2018(359) ELT 198 (Tri. Chennai)] ii. CC CE Vs, JS Gupta Sons [2015(318) ELT 63 (All.)] iii. National Leather Cloth Manufacturing Co. Vs. CCE(A), Mumbai [1999(108) ELT 303 (Tri.)] iv. Mangalore Chemical Fertilizers Vs. Deputy Commissioner [1991(55) ELT 437] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods for, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. The Tribunal has considered the scope of application of Section 125 which provides imposition of penalty in lieu of confiscation and has held in para 10 to 14 reproduced herein below:- 10 . A plain reading of the above section shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be any question of the High Court clothing the authorities with its power under Article 226 or the power of a Civil Court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in Clause (3) of the impugned order is unsustainable in law. 12 . We also find that not only Section 125 but no Section of the Customs Act, 1962 gives any officer the power to compel anyone to import or export or re-export. This Section also does not give the Adjudicating Authority the right to give a conditional redemption saying you can redeem only if you agree to re-export . In case of prohibited goods the adjudicating authority has only two options : (a) to allow redemption on payment of fine; or (b) to not allow redemption. 13 . In view of the above, we find that the condition in the Order-in-Original that the goods should be re-exported after redemption is liable to be set aside and we do so. 14 . Appeal is allowed to the extent that the condition in the Order-in- Original that the goods should be re-exported after redemption is set aside. Further we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of silicon wafers may be used for various solar applications like assembling of solar lantern, solar light etc. Further we find that both the authorities have wrongly relied upon the statement recorded during the investigation. The copies of which have not been supplied to the appellant and has come to the conclusion that the appellants have admitted the misdeclaration. As per the settled law, the burden of classification is on the Department and in the present case, the Department has not made any effort to prove the same by any documents except the proceeding to classify the impugned goods as waste and scrap solely considering breakage of some of the imported goods and without considering the nature of usage of the said goods. Here it is pertinent to reproduce the report of KSPCB which is the most authentic report, which is as under:- 5.3. Further we find that even in the report of CPCB, the Board has clarified that the scrap of solar cells (broken/small pieces of silicon wafers) does not appear in any of the Schedule of the Hazardous and other Wastes (Management Transboundary Movement) Rules, 2016. Further, we find that the appellant has also placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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