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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that the officers were not competent to point out such nature of contaminants that too merely on a visual inspection is completely hollow and lacks substance. As per Import Policy pertaining to import of waste paper, according to the HOWR, 2016, paper waste comes under Part D of Schedule III, Basel No.B3020 and can be imported into India without approval from MoEF CC, provided they are not mixed with hazardous wastes. Now, the presence of hazardous wastes prohibited to import viz. Basel No. A/4020, Basel No. B/3010, Basel No. Y 46 i.e., biomedical waste, post-consumer domestic waste, municipal waste in these consignments renders the imported goods within the scope of illegal traffic . In view of the discussions and the legal position as laid down by the courts and in view of the fact that the appellant had procured and supplied PSIA Certificates alongwith Chemical Analysis Certificates, in each of the case, the integrity of issuance of which have not been doubted, compromised or malafides attached thereto, and which were obtained from accredited persons as approved by the DGFT, we are of the view that the case does not warrant imposition of penal liabilities upon the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid terms. - HON BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL) AND HON BLE SHRI RAJEEV TANDON, MEMBER (TECHNICAL) For the Appellant : Shri Rahul Dhanuka, Advocate For the Respondent : Shri Tariq Suleman, Authorized Representative ORDER PER : RAJEEV TANDON The appellants have filed the present appeal being aggrieved by the Order-in-Appeal No. KOL/CUS(Port)/KS/656/2023 dated 28.08.2023 passed by Ld. Commissioner of Customs (Appeals), Kolkata. The Ld. Commissioner (Appeals) vide the impugned order has held that the examination of the imported goods (declared as waste paper) have established that the said consignments of waste paper were mixed with hazardous wastes that are prohibited for import and has therefore upheld the Ld. Adjudicating Authority s order whereby the appellants have been held liable to consequences in law for import/attempted imports of goods that are prohibited. In the adjudication and appellate proceedings, as the imported goods were found to be contrary to the self-declaration tendered by the appellant for purpose of assessment and were found mixed with hazardous wastes, the goods have been held liable to confiscation and therefore confiscated. The Ld. Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the representative, of the importer- the CHA. While it is not disputed that at the time of examination, shipper s seal in all the 11 consignments were found to be intact and no discrepancy was observed during examination as regards the quantity of bales and the weight of the goods, however, a detailed examination of the goods inside 8 containers of waste paper of OMP-8 (Manufacturing of newsprint) and 2 containers of waste paper and Special news De-Ink quality imported under 4 Bills of Entry (No.6969754, 6969763, 6981828, 6969760 all dated 06.01.2022) were found to be contaminated with municipal and hospital wastes like foods packets , drink canes (sic.), toothpaste tube and bio-medical waste like three ply masks, tablet and drug boxes etc. Further, upon examination of one container of waste papercoated/uncoated ground wood shavings imported vide Bill of Entry No.6969694 dated 06.01.2022, the goods were found as declared. Likewise, goods contained in remaining containers viz. the entire consignment were subjected to 100% examination and various kinds of contaminants of prohibited nature noticed. Individual Bills of Entry wise examination report as summarized by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14.01.2022, 7415129 7415130 both dated 09.02.2022 were seized in terms of section 110(1) of the Customs Act. While NOC was later given for release of the consignment covered vide Bill of Entry No.6969694 dated 06.01.2022. 4. The following chart gives a brief on the import shipment thereof covered under the 10(ten) Bills of Entry, that were seized by the department indicating pre-shipment inspection agency details. Sl. BE No. Date Description of Goods Qty (MT) Declared Unit Price Supplier Pre-shipment Inspection Agency Total AV in Rs. 01. 6935670 Dated 03.01.2022 Waste Paper- News grade-1 (Manufacturing of Newsprint) 395.6 310 USD CIF Berga Recycling Inc., Canada M/s. NMCI Inspections Survey Co. Pvt. Ltd., 2nd Floor, Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 94,61,367 02 6969754 Dated 06.01.2022 Waste Paper-ONP 8 (Manufacturing of Newsprint) 52.25 352 USD CIF Prinnacle Fibres Inc, Canada M/s. NMCI Inspections Survey Co. Pvt. Ltd., 2nd Floor, Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 14,18,943 03 6969763 Dated 06.01.2022 Waste Paper-ONP 8 (Manufacturing of Newsprint) 98.39 352 USD CIF Prinnacle Fibres Inc, Canada M/s. NMCI Inspections Survey Co. Pvt. Ltd., 2nd F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scanned herein below for sake of reference and records: 6. For the appellants, the learned Advocate Sri Rahul Dhanuka submits that paper, paperboard and paper product waste is listed in Part-D of the Schedule III of the HOWR, 2016, and that for the importation of other waste listed therein the importer is not required to take prior permission from the MOEF CC and that read with Schedule III of the HOWR, 2016, the appellant is required to maintain the record of waste in Form 3. Further, actual users are authorized by State Pollution Control Board (SPCB) to import waste paper subject to verification of documents by Customs (refer Sr. 5 of Schedule VII of HOWR, 2016). 7. He further submits that paper waste is freely importable and therefore the importer had furnished all requisites, as required under Rule 13(2) and Rule 18(2) of the HOWR, 2016 alongwith the Bills of Entry. It is therefore his case that in disregard of the aforesaid Rules, the Customs officers examined the said 65 containers under the subject 11 Bills of Entry by completely de-stuffing the same and submits that despite finding no discrepancy about the importation regarding statutory compliances with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier of the imported goods has categorically refused to take back the imported cargo, and being left with no alternative at their end, the only option available, as permitted by the Ld. Appellate authority to dispose of the goods in waste to energy plants for energy generation under supervision of SPCB, as the only plausible manner of destruction of the hazardous waste and prohibited imports, as laid in law (HOWR, 2016). He therefore supports the order under challenge passed by Commissioner (Appeals), including imposition of fine and penalty on the appellant. POLICY FOR IMPORT OF HAZARDOUS WASTES 11. The import of different types of wastes into the country is regulated by the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (HOWR for short) read with the Environment (Protection) Act, 1986. Import of Waste Papers is additionally regulated by the Revised Office Memorandum No. 131/2004- HSMD issued by Ministry of Environment, Forest Climate Change, issued in the specific context of import of waste paper on 11th May, 2010. The said OM also prescribes limits for recyclable material in wastepaper consignments being imported from other countries, besides stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitted 18. New Colored Kraft None permitted 19. Grocery Bag Scrap None permitted 20. Kraft Multi-Wall Bag Scrap None permitted 21. New Brown Kraft Envelope Cuttings None permitted 22. Mixed Ground Wood Shavings None permitted 23. Telephone Directories None permitted 24. White Blank News None permitted 25. Ground Wood Computer Printout None permitted 26. Flyleaf Shavings None permitted 27. Coated Soft White None permitted 28. Hard White Shavings None permitted 29. Hard White Envelope Cuttings None permitted 30. New Colored Envelop Cutting None permitted 31. Semi Bleached Cutting None permitted 32. Unsorted Office Paper 2 33. Sorted Office Paper 1 34. Manifold Coloured Ledger 35. Sorted White Ledger 36. Manifold White Ledger 37. Computer Printout None permitted 38. Coated Book Stock None permitted 39. Coated Ground Wood Section None permitted 40. Printed Bleached Board Cuttings 41. Misprint ted Bleached Board 1 42. Unprinted Bleached Board None permitted 43. Bleached Cup Stock None permitted 44. Printed Bleached Cup Stock None permitted 45. Unprinted Bleached Plate Stock None permitted 46. Printed Bleached Plate Stock Kinds None permitted 47. Specialty Grades (White waxed cup cutti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were imported in contravention of the policy laid down for the import of paper wastes. 13. Further, in terms of HOWR 2016, paper waste is incorporated in Part D of Schedule III - B-3020 and can be imported without permission of MOEF CC provided they are not mixed with hazardous waste and scrap of paper or paperboard of : a) unbleached paper or paperboard of corrugated paper or paperboard. b) other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass. c) paper or paperboard made mainly of mechanical pulp (for example newspapers, journals and similar printed matter) d) other, including but not limited to i. laminated paperboard ii. unsorted scrap. 14. In terms of Rule 11 of the Import and Export (Trans-boundary Movement) of Hazardous and Other Wastes Rules, the MOEF CC being the nodal Ministry to deal with such cargo has prescribed, the provisions regulating the imports of such goods and whereby : Rule 15. Illegal traffic.- (1) The export and import of hazardous or other wastes from and into India, respectively shall be deemed illegal, if- (i) it is without permission of the Central Government in accordance with these rules; or (ii) the permission has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule VII prescribed in terms of Rules 13 (6) (MOEF CC (seeking to ensure compliance with reference to charter of functions) and Rule 21 (Responsibility of Authorities) of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, states the following: SCHEDULE VII [See Rule 13(6) and 21] List of authorities and corresponding duties S. No Authority Corresponding Duties 1. 2. 3. 4. 5. 6. Port authority under Indian Ports Act, 1908 (15 of 1908) and Customs Authority under the Customs Act, 1962 (52 of 1962) (i) Verify the documents (ii) Inform the Ministry of Environment, Forests and Climate Change of any illegal traffic (iii) Analyse wastes permitted for imports and exports, wherever required. (iv) Train officials on the provisions of these rules and in the analysis of hazardous and other wastes (v) Take action against exporter or importer for violations under the Indian Ports Act, 1908 or Customs Act, 1962 17. The appellant has extensively relied upon the decision of this Tribunal in the case of Neelkanth Pulp Paper Boards Vs. Commissioner of Customs 2022 (1) TMI 1185 CESTAT - Ahmedabad, wherein it was held that a technical opinion rendered by way of Pre-Ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hazardous and Other wastes prohibited for import in Schedule VI, and what is contained in Part D of Schedule III on which the appellant relies, is merely a list of waste products that are permitted for import without prior permission of the nodal agency i.e. the MOEF CC. Even in this list there is a caveat provided they are not mixed with hazardous waste. The relevant extract of the list is extracted below: Part D List of other wastes applicable for import and export without permission from Ministry of Environment, Forest and Climate Change [Annex IX of the Basel Convention*] Basel No. Description of wastes (1) (2) B3 Wastes containing principally organic constituents, which may contain metals and inorganic materials B3020 Paper, paperboard and paper product wastes ** The following materials, provided they are not mixed with hazardous wastes: Waste and scrap of paper or paperboard of: - unbleached paper or paperboard or of corrugated paper or paperboard - other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass - paper or paperboard made mainly of mechanical pulp (for example newspapers, journals and similar printed matter) - other, including but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther facilities during the investigation or treatment of patients, or research projects, 2. The Basel No. B/3010 reads Solid plastic waste. The following plastic or mixed plastic waste, prepared to a specification:- Scrap plastic of non-halogenated polymers and co-polymers, including but not limited to the following: Ethylene, Styrene, Polypropylene, Polyethylene terephthalate, Acrylonitrile, Butadiene, Polyacetals, Polyamides, polybutylene terephthalate, Polycarbonates, Polyethers, polyphenylene, sulphides, acrylic polymers, alkanes C10-C13 (plasticizer), polyurethane (not containing CFC s), Polysiloxanes, polymethyl methacrylate, polyvinyl alcohol, polyvinyl butyral, Polyvinyl acetate, and 3. Basel No. Y 46 reads Wastes collected from household/ municipal waste. A conjoint reading of the contaminants detected and noticed in the shipment vis- -vis as indicated under Basel No. S A4020, B3010 and Y46 clearly indicate the said contaminants to be of the category as are prohibited for import under the HOWR, 2016. In view of this, the fact that the imported waste paper should not contain any solid municipal waste/post-consumer domestic waste or bio-medical waste . certainly flows from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rug boxes, compressed beverages cans, food packets, plastic bottles, plastic wastes, plastic sheets, plastic bags, plastic jars, soft drink cans, used plastic bottles, used plastic containers, parts of tin container, used face masks, used rubber hand gloves etc. has not been disputed. 24. As per Import Policy pertaining to import of waste paper, according to the HOWR, 2016, paper waste comes under Part D of Schedule III, Basel No.B3020 and can be imported into India without approval from MoEF CC, provided they are not mixed with hazardous wastes. Now, the presence of hazardous wastes prohibited to import viz. Basel No. A/4020, Basel No. B/3010, Basel No. Y 46 i.e., biomedical waste, post-consumer domestic waste, municipal waste in these consignments renders the imported goods within the scope of illegal traffic . Thus Rule 15 of the HWM Rules provides that:- Rule 15. Illegal traffic. (1) The export and import of hazardous or other waste from and into India, respectively shall be deemed illegal, if, - (i) it is without permission of the Central Government in accordance with these rules; or (ii) the permission has been obtained through falsification, misrepresentation or fraud; or (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HSM advised that point (iv) of the OM of 2010, under reference is an overriding prohibition and no amount of Municipal waste, Post-consumer domestic waste or Biomedical waste or any other contaminants is allowed with the consignment of waste paper. In case such contaminants are found, then the consignment will have to be sent back to the exporting country. Such contaminants cannot be segregated and disposed of in India and the Customs authorities have to ensure compliance of the OM in question. This clarification is quite categorical and leaves no room for intendment. 28. As for the appellant s submissions regarding supply of the Pre-Shipment Inspection Certificate (PSIC) at the time of import, pointing out that the same had been obtained from accredited and recognized agency specified by the DGFT and therefore the subject matter would call for due consideration in support of their stance, debarring the Customs Officers of any interdiction of the cargo, it may be stated that submission of PSIC cannot be considered as a universal gospel and mere furnishing thereof would not preclude the authorities empowered under the Hazardous Other Wastes (Management Transboundry Movement) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Mill (P) Ltd. And Others - 2003 (2) Supreme Court Cases 111 c) Bharat Petroleum Corporation Ltd. Another Vs. NR Vairamani Another - AIR 2004 (SC) 4778 (S.C.) d) ITC Ltd. Vs. Norasia Container Lines Ltd. - 2020 (373) E.L.T. 289 (S.C.) e) ITC Ltd. Vs. Norasia Container Lines Ltd. - 2009 (247) E.L.T. 60 (Mad.) f) Commissioner of Customs Vs. Magus Metals P. Ltd. - 2017 (355) E.L.T. 323 (S.C.) We respectfully submit that none of the aforesaid pronouncements cater to the issue at hand and are therefore referred to out of context. 31. The Tribunal in the case of Krishna Tissue Pvt. Ltd. Vs. Commissioner of Customs (Port), Kolkata vide Final Order No.MO/75589/2023 FO/76724/2023 dated 11.09.2023 has held as under:- 13. In view of our discussions above, the Department in association with SPCB is directed to examine the goods as per terms of the revised OM (F.No.23/107/2022SHMD dated 10.01.2023) containerwise and to be so done in presence of the importer. The containers of paper waste where the goods are found in conformity with OM dated 10-01-2023, may be provisionally released on Bond/Undertaking. Where paper waste is found to be contaminated in a container, it would be dealt with under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no more but plainly fallacious. (ii) In the case of Norasia Container Lines Ltd. Vs. Union of India - 2008 (222) ELT 323 (Mad.) a case specific to import of waste paper contaminated with municipal waste, the Hon ble Madras High Court, wherein certain respondents sought to withdrawn the import bills, after it was found to be containing hazardous waste, had held that the same would not tantamount to discharging them of their obligations under the statute. Moreover, on the aspect of disposal of such cargo in terms of the erstwhile rule 15(3) it was held in no uncertain terms that the absence of a statutory obligation under one of the provisions, cannot result in obligation imposed by the other getting wiped out. The court in the case was concerned with the provisions of the Customs Act 1962 and that of the Hazardous Wastes (Management and Handling) Rules 1989. It categorically held that Rule 15(3) of the said rules imposed an obligation on the importer/exporter to ship or dispose off the goods if they are hazardous and had deployed the agencies of the Central Pollution Control Board for a final determination of the hazardous nature of the cargo, with the cost thereof to be borne by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to take action against violation of the HOWR, 2016, provisions. We feel that the subject cargo can be jointly got re-examined afresh by the department in co-ordination with SPCB before initiating any further action in the matter. However the said option is completely at the discretion of the appellant who will be required to file a written undertaking with the jurisdictional Commissioner to the effect of consent thereto and to abide by the consequence of such re-examination. The appellant will be required to bear the cost incurred for the re-examination of the goods. Such option if any, will be required to be exercised by the appellant within four weeks of the pronouncement of the order. 35. In the event of the appellant choosing to re-export the goods redemption fine as adjudged by the original authority shall be payable, in lieu of confiscation under Section 125 of Customs Act. 36. In case, the appellant choses not to exercise the aforesaid option, and also fails to re-export the offending prohibited goods, they will be required to dispose of the goods as directed by Commissioner (Appeals) in the impugned order under challenge, as follows: 21. Further, .. In . I give the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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