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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 ..... authority holding that there is no violation of statutory provision of Pollution and Hazardous materials in the imported consignment, the confiscation ordered in the impugned Order-in-Appeal, would be treated as set aside. (B) If the re-examination result confirms the earlier conclusion arrived at by the Revenue, in such a case, the appellant would be required to re-export the offending prohibited goods. (C) The appellant would be bound by the final decision of the re-examining authority as already held. The Appeals are disposed in the above terms. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) APPEARANCE For the Appellant : Mr. Rahul Tangri Ms. Udita Saraf, Advocate. For the Respondent : Shri Subrata Debnath, Authorized Representative. PER : ASHOK JINDAL : Since both the Appeals have common issue, they are taken up for disposal together. The brief facts of the case are as under:- (i) The Appellant is inter-alia engaged in the business of manufacture of coated Duplex Board in West Bengal and in furtherance of its business, the Appellant procures waste paper of all grades and varieties form domestic as well as international marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al waste , is covered within the ambit of Schedule VI of the HWM Rules vide Basel No A4020. B3010 and Y46, which entails prohibition on import of clinical waste, solid waste, municipal waste etc. Hence, waste paper import should be free from the mentioned prohibited wastes. - In terms of Office Memorandum dated 28.03.2022 issued under reference F. No. 23/53/2020-HSM, point (iv) of the Office Memorandum dated 11.05.2010 is an overriding prohibition and hence such Office Memorandum has not placed any additional restriction on import waste paper rather it is a part of HWM Rules.. -As per Part D, Schedule III, Basel No. B3020. imported waste paper can be imported into India without prior approval, provided they are not mixed with hazardous waste. The said provision read with Basel No. A4020, B3010 and Y46 renders the present consignment within the scope of 'illegal traffic' under Rule 15 of HWM Rules inasmuch as the subject consignment contains hazardous waste. (viii). The above Orders-in-Original passed by the Original Authority, were challenged before the Ld. Commissioner of Customs (Appeals), Kolkata. The appeal filed by the appellant was decided by the Ld. Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in the following cases: a) Ambica Quarry Works Vs. State of Gujarat Others b) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. And Others c) Bharat Petroleum Corporation Ltd. Another Vs. NR Vairamani Another d) ITC Ltd. Vs. Norasia Container Lines Ltd. e) ITC Ltd. Vs. Norasia Container Lines Ltd. f) Commissioner of Customs Vs. Magus Metals P. Ltd. 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) container-wise 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 the new OM dated 10-01-2023 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Container Lines Ltd. Vs. Union of India - 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 the importers (2nd respondent- M/SITC, Ltd. Secunderabad). Subsequently, in a related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 chooses 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 option to the appellant that the appellant can disposed of the impugned goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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