9911796707
TMI Blog2024 (9) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... e outcome of a conspiracy between the two. Hence, that, too, is no ground for invoking of section 111(m) of Customs Act, 1962. It would appear that the re-export of goods had not been ordered either as alternative to clearance for home consumption or in exercise of discretion under any provision of Customs Act, 1962. Instead the mandate of rule 17 of Hazardous Waste (Management, Handling Transboundary Movement) Rules, 2008 is held as the final word in that particular enforcement of law. In similar circumstances of mandate to prevent entry contrary to restrictions on drugs and cosmetics into India, it was held in re Siddiq Yusuf Merchant [ 2022 (5) TMI 1318 - CESTAT MUMBAI ] that ' it is a statutory right available to an importer which cannot be overlooked by the department; the importer should have been allowed to exercise the option to re-export the goods, as prayed for. It would sound more logical and legal to follow the said procedure prescribed under Rule 131(3) of the Drugs and Cosmetics Rules,1945, in absence of any contrary provisions under the Customs Act, 1962, which has not been cited before us. At the cost of repetition, it appears that the imported cosmetics are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic ton) was assessed to rate of duty corresponding to tariff item 7903 1000 of First Schedule to Customs Tariff Act, 1975 by revision of value to ₹ 28,77,975 at US$ 2040/metric ton and consequent duty liability of ₹ 6,57,707 which, along with interest, was discharged while the goods were pending for final clearance under section 47 of Customs Act, 1962. During examination of cargo thereafter, and on suspicion that the goods were not in accord with declaration, samples were drawn which, upon testing, was reported to be of such characteristics, and ascertained to have zinc content of 69.4%, as to conclude to be zinc ash conforming to description in tariff item 2620 1900 that, though bearing the same rate of duty, could, in terms of licencing notes in chapter 26 of the ITC (HS) Code in the Handbook of Procedures (HoP) appended to Foreign Trade Policy (FTP), be imported only against licence failing which was liable to be ordered for re-export under Hazardous Waste (Management, Handling Transboundary Movement) Rules, 2008 and thus proceeded against in the manner that caused grievance to the appellant. 3. The results of test of representative sample has not been controverted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome prohibited within the meaning of Section 2 (33) read with Section 11 of the Customs Act, 1962. The prohibited goods have been attempted to be imported in contravention of Rule 13 (1) 17 of the HWMHT Rules, 2008 and the provisions of Foreign Trade Policy (FTP) 2009-14 thereby rendering the goods liable for confiscation under 111(d). Further since the goods have been mis-declared as Zinc dust instead of Zinc Ash, the goods become liable for confiscation under Section 111(m) of Customs Act. By their acts of omission and commission, the importer is also liable for penalty under Section 112(a) ibid. xxxx 18. The importer has committed a serious lapse by importing hazardous waste into the Country in the guise of Zinc Dust. The goods have been classified as hazardous waste under the Hazardous Waste (Management, Handling Transboundary Movement) Rules, 2008 and is a prohibited item for import in view of the adverse impact of such goods to our ecology. Such acts need to be discouraged and penalty levied should act as deterrent to prevent recurrence of such acts. . for confiscation under section 111(d) of Customs Act, 1962 with all the consequences now disputed. 5. Learned Counsel for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iracy between the two. Hence, that, too, is no ground for invoking of section 111(m) of Customs Act, 1962. 8. It would appear that the re-export of goods had not been ordered either as alternative to clearance for home consumption or in exercise of discretion under any provision of Customs Act, 1962. Instead the mandate of rule 17 of Hazardous Waste (Management, Handling Transboundary Movement) Rules, 2008 is held as the final word in that particular enforcement of law. In similar circumstances of mandate to prevent entry contrary to restrictions on drugs and cosmetics into India, it was held in re Siddiq Yusuf Merchant that 13. We find merit in the argument of the appellants. There is no doubt that since the goods are not supported with CDSCO certificate definitely be considered as prohibited under the Drugs and Cosmetics Act, 1940 and the rules made thereunder and the consequence thereof is confiscation. But, simultaneously, it cannot be ignored that some procedure has been prescribed under Drugs and Cosmetics Rules, 1945 to mitigate such a situation where the imported cosmetics are found to be in contravention with the provisions of Drugs and Cosmetics Act and the rules made the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
