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TMI Blog2024 (9) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... analysis was presented by the importer or got conducted by the Customs from a competent authority/ agency. The report appears to have presumed the goods to fall under A4070 of Schedule III Part-A of the List of Hazardous Waste as per Hazardous and Other Waste (Management of Transboundary Movement) Rules, 2016 and that such goods require prior permission. No analysis of the consignment seems to have done by the authorities - the denial of cross-examination particularly when the opinion was given only on the basis of records or visual examination is violation of principles of natural justice. The fact that the appellants imported goods identical to the impugned goods at different ports and no questions were raised and the fact that no sample was drawn in the presence of the appellant or his representative add to the credence of the appellant s submission. In the impugned case, the opinion that the imported goods were of hazardous waste was not arrived on the basis of any chemical test or analysis; it appears that the decision has been arrived on the basis of the warning words written on the container. Such a conclusion drawn even by a competent authority will not stand the scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted; Shri J.P. Meena, Scientist D visited the Port on 17.11.2022 and vide mail dated 07.12.2022 concluded that the imported goods are hazardous; no permissions was obtained from the Ministry; the import was illegal and that the Port authority may direct the importer to send back the consignment. On the basis of the above, Revenue concluded that the impugned goods are prohibited and there are reasons to believe that the goods are liable for confiscation; a Show Cause Notice dated 03.02.2023 was issued which culminated in the passing of the impugned order as cited above. 3. Shri Naveen Bindal, learned Counsel for the appellants, submits that the appellants imported solvent based paints meant for the paint manufacturers; the appellant is a traderengaged in import of paints; the warning mentioned on the containers was hazardous, flammable liquid, toxic, poison etc. and it was nowhere stated that goods are Hazardous Waste; it is also not stated that goods are waste arising out of manufacturing of paints; it was wrong to state that goods are hazardous waste; the said Rules are applicable in case of hazardous waste and not hazardous goods; there is difference between hazardous waste and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chandigarh physically visited the site on 17.11.2022 and put forth his conclusion in email dated 07.12.2022 (RUD-6); it transpires on perusal of email dated 07.12.2022 that said officer has also given its report on pre-determined basis; there is no difference between letter dated 11.11.2022 and email dated 07.12.2022 and both are based upon information provided by the DRI; no test was conducted or no sample was drawn before arriving at such conclusion; even containers of the paint were not opened to check exact nature of the goods. He submits that thus, reliance is wrongly placedon said report; said email also stated the goods as hazardous but not as hazardous waste; neither the Appellant nor its CHA was called upon to join inspection of the goods; no Panchnama was drawn recording inspection proceedings; record of such inspection is not on record; thus, said inspection made in the absence of the Appellant and independent persons, cannot be made relied upon. He submits that moreover, the appellant s request for cross examination of Sh. J. P. Meena was rejected against the settled position of law. In the absence of cross examination, report cannot be relied upon. 7. Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II Part- A of the List of Hazardous Waste as perHazardous and Other Waste (Management of Transboundary Movement) Rules, 2016 and a prior permission under the Rules is required to be obtained before the import; the Show Cause Notice contends that the impugned items fall under A4070 of the Schedule III Part-A. On a perusal of the Heading A4070, it appears that the Heading covers the following : Basel No. Description of Hazardous Waste A4070 Waste from the production, formulation and use of inks, dyes, pigments, paints, lacquers, varnish excluding those specified in Part B (B4010) 11. While the entire Rules cited above cover hazardous waste, the appellants submit that it is not proved that the impugned goods are hazardous waste; the Department drew its conclusion from the description on the containers by the words Hazardous , Inflammable , Poison , not for retail sale etc. We find that the report dated November 11, 2022 given by Central Pollution Control Board does not state that the impugned goods are hazardous waste. It states that as per Rule 13(10) of the said Rules, the Port and Customs authorities shall ensure that shipment is accompanied with the movement document as given in F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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