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TMI Blog2020 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the adjudicating authority to decide the matter afresh even while accepting their proposition of incorrectness in imposing reexport of the confiscated goods as condition for redemption under section 125 of Customs Act, 1962. Learned Counsel for the appellant concedes that there is no cavil with confiscation under section 111(d) of Customs Act, 1962 arising from non-production of 'authorisation' required for effecting imports of 'old and used goods' as prescribed in paragraph no. 2.31 of Foreign Trade Policy (2015-20) notified under the Foreign Trade (Development & Regulation) Act, 1992. It is also on record that order-in-appeal no. 783 to 786 (Gr.V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal by directing compliance with Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2016 which was not a ground proposed by the original authority for proceeding against the imports. He further argued that the imposition of condition of re-export, with absolute confiscation in default thereof, was contrary to the decision of the Hon'ble Supreme Court in Commissioner of Customs v. Atul Automations Pvt Ltd [2019 (365) ELT 465 (SC)] in which it has been held that '9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods. 12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of "other wastes" shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly, the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the issue of competence to remand vesting with the first appellate authority had been judicially settled. It was further argued that, in the absence of 'authorisation' and being non-compliant with conditions pertaining to hazardous waste, the impugned goods were liable to absolute confiscation. 6. It is seen from the records that it was the appellant who had, in their appeal, albeit with different intent, raised the aspect of stipulations in relation to import of hazardous waste. In the circumstances, the first appellate authority cannot be faulted for acknowledging the requirement for such compliance. It is also admitted that the importer is not in possession of a valid 'authorisation' and, hence, the liability to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edeem goods, absolute confiscation is the consequence of default thereof. From section 125 of Customs Act, 1962, it is seen that confiscated goods vest with the Central Government and, in the absence of authority under law, or by delegation, to destroy, the adjudicating authority is required to protect such goods till appropriate disposition as prescribed by the Central Government. 8. As the orders impugned before the first appellate authority had not considered the principles laid down in re Atul Automations Pvt Ltd, including the quantification of fine, as well as the restrictions imposed by law on treatment accorded to confiscated goods, we find no reason to disagree with the remand ordered by the first appellate authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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