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TMI Blog2024 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... would mean that respondent no. 3 was satisfied with the explanation given by petitioner. Support for this view taken from a judgment of this Court in Aroni Commercials Limited Vs. The Deputy Commissioner of Income Tax-2 (1) [ 2014 (2) TMI 659 - BOMBAY HIGH COURT] , where the Court, while dealing with the provisions of Section 148 of the Income Tax Act, 1961, held that once a query is raised during the assessment proceedings and assessee has replied to it, it follows that the query was subject matter of consideration of Assessing Officer while completing the assessment and same is deemed to have been accepted. The Court also held that it is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the each and every query raised - Therefore, since there is no discussion or finding on the issue of hazardous waste in the impugned order, respondent no. 3 should be taken as having accepted petitioner s explanation. In the impugned order, respondent no. 3 has strangely gone ahead and rejected the assessable value as Rs. 50,14,653/- and redetermined the value of the said goods as Rs.56,79,450/-. Based on this finding, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of Rs.6,03,736/- on or about 10th February 2021. 4. By communication dated 15th February 2021, respondent no. 3 raised an objection vide a query disallowing clearance of the said goods alleging violation of Hazardous and other Wastes (Management, Handling and Trans-Boundary Movement) Rules, 2016 ( the said Rules ). By its letter dated 22nd February 2021, petitioner replied and explained that the said Rules did not prohibit the clearance of the said goods. This was followed by virtual hearing granted on 5th March 2021 by Deputy Commissioner of Customs. On or about 8th March 2021, petitioner submitted a detailed representation to the Commissioner, Additional Commissioner of Customs and the Deputy Commissioner of Customs reiterating that used haemodialysis machines did not contain any hazardous or other waste as defined under the said Rules. Petitioner requested that the said goods be allowed to be cleared. Petitioner submitted various certificates in support of its case. 5. It is petitioner s case that notwithstanding the detailed representation given by petitioner as recorded above, respondent no. 3 issued a show cause notice (SCN) dated 19th March 2021 under Section 124 of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril 2021. Petitioner submitted as to why used haemodialysis machines imported are not hazardous waste or other waste and the interpretation sought to be undertaken by respondent no. 3 of the said Rules was erroneous. Respondent no. 3 thereafter, issued the impugned order dated 21st April 2021 and this petition came to be filed. 7. On 18th November 2022, this Court was pleased to pass an interim order as ad-hoc arrangement. Keeping open all rights and contentions, respondent no. 3 was directed to release the said goods and petitioner was directed to pay additional basic customs and any other additional duty or surcharge or cess as may be applicable as per the Customs Tariff Act, 1975 and redemption fine of Rs. 5,00,000/-. Respondent no. 3 was directed to release the said goods upon petitioner paying the amounts mentioned in the order. These have been complied with and the imported goods are released. 8. Mr. Jagtiani for petitioner took us through the relevant provisions of the said Rules and submitted that respondent no. 3 has erroneously and arbitrarily interpreted and applied the said Rules. Mr. Jagtiani, at the outset, submitted that the Rules only prohibit hazardous and other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice proceeds on the basis that what is imported was a prohibited item and it was prohibited because it was used critical care medical equipment which has been prohibited under policy condition and provisions laid down for the import of old and used medical equipment under Rule 12 (6) and Basel No. B-1110 of Schedule VI of the said Rules. In the impugned order dated 21st April 2021, in our view, respondent no. 3 has accepted petitioner s explanation that the said goods cannot be termed as hazardous waste which is a prohibited item. We say this because in the impugned order, respondent no. 3 has copiously noted the submissions of petitioner as to why used haemodialysis machines are not hazardous wastes or wastes . Submissions recorded runs into almost 6 pages in the impugned order. However, in the discussions and the findings in the impugned order, respondent no. 3 is totally silent about labelling the said goods as hazardous waste or waste . In the impugned order though there is a passing reference to importing prohibited goods, there is a absolutely no discussion or finding. Para 9 and 10 of the impugned order read as under : 9. I have carefully gone through the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Four Hundred Fifty only), it is noticed that the imported goods have been mis-declared in respect of Value. The subject mis-declaration in value on the part of importer has resulted in increase in leviable duty amount to the tune of Rs.6,85,688/- (Rupees Six Lakhs Eighty Five Thousand Six Hundred Eighty Eight only) and short levy of duty to the tune of Rs. 83,930 (Rupees Eighty Three Thousand Nine Hundred Thirty only). 9.5. I find that the importer was asked to show cause why the subject impugned goods should not absolutely confiscated under the provisions of Section 111 (d) of the Customs Act, 1962. 9.6 I find that the importer contravened the provisions of Section 46 (4) of the Customs Act, 1962. I also find that the imposition of penalty under the provisions of Section 112 (a) of the Customs Act, 1962 has been proposed in the said SCN. 9.7 In view of the provisions of Section 112 (a) (i) of the Customs Act, 1962, I find that the importing firm M/s Hemant Surgical Industries Limited (IEC:-0390024945) contravened the provisions of Section 111 of the Customs Act, 1962 by importing prohibited goods at JNPT by. Therefore, I find that the importer M/s Hemant Surgical Industries Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order, respondent no. 3 has strangely gone ahead and rejected the assessable value as Rs. 50,14,653/- and redetermined the value of the said goods as Rs.56,79,450/-. Based on this finding, he has also ordered confiscation of the said goods under Section 111 (d) of the Customs Act and given an option to petitioner to redeem the said goods on payment of redemption fine of Rs.3,00,000/- under Section 125 of the Act for the purpose of re-export only. Penalty of Rs. 1,00,000/- also was imposed upon petitioner under Section 112 (a) (i) of the Act. In the show cause notice dated 19th March 2021, that was issued to petitioner, petitioner has not been called upon to show cause as to why the total assessable value declared by petitioner should not be rejected or why the said goods should not be confiscated for mis-declaring the assessable value or why penalty should not be imposed upon petitioner under Section 112 (a) (i) of the Act for mis-declaring the assessable value. Mr. Mishra submitted that in paragraph 6 (i) 6 (ii) of the show cause notice dated 21st April 2021, petitioner has been called upon to show cause as to why the goods should not be confiscated or why penalty should no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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