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TMI Blog2024 (5) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... pon examination, it was allegedly discovered that along with waste paper, the consignment also contains other contaminants like solid municipal waste, bio-medical waste, hazardous waste like plastic pipes, pieces of ropes, pieces of rags, food residue, aluminium cans, discarded mobile covers, milk packets, soft drinks cans, tetra packs, bleached cup stock, plastic laminated food containers/packages, plastic lids, plastic wrappers etc., which is in contravention of import policy viz., provisions of HWM Rules and the para (iv) of the Office Memorandum No. 13-1/2004-HSMD dated 11.05.2010 issued by the Director, Ministry of Environment Forest & Climate Change ('Office Memorandum') (iii) Accordingly, consignments imported by the Appellant were ordered to be seized under Section 110 of the Customs Act. (iv) Thereafter, two SCNs were issued upon the Appellant wherein it was proposed to confiscate the consignment imported under 11 Bills of Entry and further, impose penalty on the Appellant under Section 112 (a) & (b) and 114AA of the Customs Act. Further, it was also proposed to re-export the goods to the overseas suppliers in terms of Rule 15 (2) of the Hazardous Waste Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the present appeals. 2. The Learned Counsel for the Appellant heavily relies on the decision of this Tribunal in the case of Neelkanth Pulp and Paper Boards V. C.C. Jamnagar (Prev.)-2022-VIL-71-CESTAT-AHM-CU. 3. On the other hand, the Learned AR submits that on identical issue, the Co-Ordinate Bench of this Tribunal has examined the issue in the case of M/s. Emami Paper Mills Limited Vs. Commr. of Customs (Port), Kolkata vide Final Order No. 75687/2024 dated 17/04/2024 and passed the following Order:- 37. Coming to the above option of joint re-examination afresh, as given above, if the appellant chooses to opt for re-examination, the decision of the Tribunal would be as under :- (A) In case the re-examination results in a different conclusion by the examining 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. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the show cause notice after the exercise of provisional release is undertaken, which would be subject to final adjudication. 14. Since the new OM would be the governing law which provides for re-export and quantified penalty for local disposal, the Department shall be free to take legal undertaking from the importer to comply with conditions of disposal of the goods under new OM. Needless to mention the Department would be at liberty to supervise such disposal of the goods locally/re export for contaminated container if so found." (Emphasis Supplied) 32. Before concluding, it would be appropriate for us to refer to the following judicial pronouncements with reference to certain issues that have been raised before us in the present appeal: (i) Royal Carbon Black (P) Ltd. Vs. Chief Commissioner of Customs, Mumbai wherein most revered Hon'ble Justice DY Chandrachud had categorically held that movement of any hazardous waste from an area under the jurisdiction of one country to the jurisdiction of another country was indeed within the ambit of the expression "transboundary movement" and therefore it cannot be anybody's case that certain provisions of the Schedules prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle stream, the Hon'ble court did not grant any relief to the appellants (M/s ITC) of their obligations in law and even directed the government for initiation of legal proceedings against concerned officers at the helm of affairs of the appellant's organization for posing a grave danger to Mother Nature in India and also specified a given time frame thereto, which directions were only set aside by the apex court, once the hazardous waste imported was reexported (ITC Ltd. Vs. Norasia Container Lines Ltd.) 33. In view of the foregoing 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 appellant under Section 112 (a) and/or 112 (b) as well as 114AA of the Customs Act 1962. We therefore set aside the penal liabilities so imposed on the appellant. Under the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under the supervision of respective SPCBs/PCCs, if they have their own waste to energy plant or a standing arrangement with a waste to energy plant or a cement plant for this purpose on payment of 25% of the value of the impugned goods." 37. Coming to the above option of joint re-examination afresh, as given above, if the appellant chooses to opt for re-examination, the decision of the Tribunal would be as under :- (A) In case the re-examination results in a different conclusion by the examining 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. If they fail to re-export the same, the consequence would be as held in the above paragraph number 36. (C) The appellant would be bound by the final decision of the re-examining authority as already held. 7. After going through the decision of this Tribunal in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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