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TMI Blog2008 (11) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order passed by the learned single Judge now. On a careful perusal of the entire materials on record, we are not able to find any illegality or irregularity in the recommendations made by the Expert Body i.e. the Central Pollution Control Board, to re-export the hazardous goods to the country of its origin and the Customs officials, accepting the recommendations of the Expert Body, have issued the consequential order, directing the appellant to re-export the so-called cargo to the country of its origin. Therefore, there are no merits in both the above writ petitions and accordingly, they are liable to be dismissed along with the writ Appeal. 8th respondent/Central Pollution Control Board, Bangalore, are directed to take all steps to de-stuff the cargo from the containers of the first respondent at the cost and expenditure of the appellant and see that the first respondent re-exports the cargo to the seventh respondent himself that is the country of origin - 721 of 2007 - - - Dated:- 21-11-2008 - Elipe Dharma Rao and R. Subbiah, JJ. [Common Judgment per : Elipe Dharma Rao, J.]. - Since all these matters are inextricably interconnected with each other, they have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on them under Section 112 of the Customs Act. 6. It is seen that the importer/appellant by their letter dated 27-9-2005 addressed to the Commissioner of Customs, Tuticorin/the fifth respondent has stated that the subject import consigned to them do not contain wastepaper and is in contrary to their order conditions and therefore, they have rejected the material 100% and informed the supplier. 7. It is also seen that the Central Pollution Control Board, Bangalore as Monitoring Committee of the Supreme Court on hazardous waste, pursuant to the judgment of the Honourable Apex court in Research Foundation for Science Technology National Resource Policy v. Union of India And Another [(2005) 10 SCC 510] happened to visit and examine the above said cargo on 29-9-2005 and by their report dated 4-10-2005 to the Commissioner of Customs, Tuticorin, they have reported that 'the consignment is not satisfying the description of waste paper as the cargo was found to be mixed with used pet bottles, metal cans, plastic bags and jute rugs and other municipal solid waste' and has also opined that the hazardous waste in question does not conform to the shipping details provided in the customs do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipment port in India or else to face necessary action. Immediately thereafter, the first respondent informed the agents of the appellant and the third respondent in UAE and the importer/JDH International LLC, Dubai, UAE by their letter dated 21-2-2006 about the letter issued by the Customs and instructed them that if they do not take delivery of the cargo, the carrier would re-export the cargo back to the port of origin/loading/Tuticorin, India, for which the appellant and the third respondent and also the JDH International LLC, Dubai, UAE would be held responsible for all charges including ground rent, demurrage charges, survey charges etc. 10. It is seen that for the letter dated 21-2-2006, addressed by the first respondent, the appellant had sent a reply on 27-2-2006, denying the liability and further stating that they are not the shipper of the cargo and that the cargo was shipped to the consignee M/s. JDH International LLC in Ajman by Evergreen Specialties, USA and that the cargo was originally wrongly shipped to them by Evergreen Specialities, USA and tried to shift the responsibility to the consignee M/s. JDH International LLC and Evergreen Specialities, USA. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (through hazardous), the fifth respondent may permit the disposal of the cargo locally, subject however to the terms and conditions imposed by the Central Pollution Control Board. The incineration or re-export or local disposal shall be as recommended by the Pollution Control Board and it shall be at the cost of the second respondent, in the first instance. The second respondent shall carry out this obligation, as per the recommendation of the Pollution Control Board, within six weeks of submission of the report, by the Pollution Control Board. (f) Till the time the cargo is re-exported or incinerated or disposed of locally, the petitioner shall bear the lease rental for the newly hired Customs Bonded Warehouse (to which it is shifted), as well as for the containers hired by them for the transfer of the cargo. It will be open to the petitioner to include this item of expenditure in the claim made by them in the Civil Court. (g) The obligations carried out and the expenses incurred, by the petitioner or the second respondent or the fifth respondent in carrying out the above directions, shall be without prejudice to each other's rights agitated in the civil suit. No costs. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .J. Mathew for the first respondent, Mr. M. Ravindran, Additional Solicitor General of India for respondents 2 and 5, Mr. K. Srinivasan, for the third respondent, Mr. S. Yeshwanth for the fourth respondent, Mr. S. Silambanan, Senior Counsel for the 6th respondent, Mr. G.R. Swaminathan for the 7th respondent and Mr. R. Ramanlal for the 8th respondent. 14. Mr. Arvind P. Datar, learned senior counsel appearing for the appellant has vehemently argued that the appellant is not the 'importer' of the cargo in the true meaning of the Hazardous Waste (Management and Handling) Rules, 1989 and therefore, the relief granted by the learned single Judge cannot be sustained under law. He has further argued that the finding of the Central Pollution Control Board, branding the cargo as 'illegal traffic' is illegal and there is no conclusive finding by the Central Pollution Control Board that the cargo is a hazardous waste; that since the cargo contains plastic, it cannot be called as hazardous and would submit that the entire impugned action has been initiated by the customs officials unnecessarily at the instance of the writ petitioner and if at all the writ petitioner has got anything to be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry, was sent to India and having come to know about the mistake, they have addressed letters to the Customs Officials at India regretting their mistake. 18. In view of the above pleadings and arguments, the following points would arise for consideration in these matters : 1. Whether the writ Appeal and writ petitions filed by the appellant are maintainable under law? 2. To what relief the parties are entitled? Point No. 1 : 19. On a perusal of the materials placed on record and from Para No. 16 of the order passed by the learned single Judge, it is seen that the learned senior counsel appearing for the appellant has submitted before the learned single Judge that he has no objection to the prayer of the writ petitioner being allowed to the limited extent of permitting the containers to be shifted to a private bonded warehouse and after such shifting a team of experts as suggested by the Central Pollution Control Board examining the samples of the cargo to arrive at a final conclusion and if the conclusion so arrived at is that the cargo contained hazardous waste, it could be disposed of in a manner as suggested by the team of experts and if the finding is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and cognate expressions, means bringing into India from a place outside India; 3(18) "importer" means an occupier or any person who imports hazardous wastes;" 25. The term 'Municipal Waste' is defined in Chapter 38 of the First Schedule of the Customs Tariff Act as : "Waste of a kind collected from households, hotels, restaurants, hospitals, shops, offices etc., road and pavement sweepings, as well as construction and demolition waste. Municipal waste generally contains a large variety of materials such as plastics, rubber, wood, paper, textiles, glass, metals, food materials, broken furniture and other damaged or discarded articles." 26. For further discussion in the matter, it is to be seen whether the cargo imported to India is a hazardous substance or not. Voluminous material has been filed before this Court by the Pollution Control Board and the Customs officials, showing even the photographs of the cargo. The report of the Expert Body of the Pollution Control coupled with the photographs of the cargo depicts a sorrowful picture that it contains contaminated material and if destuffed to the Indian land would cause danger to the environment. Therefore, in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consignment having been imported primarily and later found to be 'illegal traffic' as per the above said Rules. 30. Since the appellant and the third respondent have engaged the services of the first respondent to provide the containers and also sent their consignment to UAE in those containers, when it has been rejected or refused at UAE, the liability fastens on them to act legally. But, unfortunately, a flimsy stand was invented by the appellant ITC that they were not the shippers of the cargo and that the cargo was shipped to the consignee M/s. JDH International LLC in Ajman by Evergreen specialities, USA and that the cargo was originally wrongly shipped to them by Evergreen Specialities, USA. At this juncture, it is to be pointed out that during the course of arguments before us, the specific stand of the Evergreen Specialities, USA is that the cargo was sent to Ajman by the appellant without their knowledge and at no point of time, they were informed by the appellant that the cargo was sent to UAE. It clearly indicates that the appellant is playing a double game to save his skin. 31. Even from the materials placed on record, it is seen that M/s. Evergreen specialities, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by M/s. Evergreen Specialities or anybody else, the legal doors are always open for them to proceed against them. But, escaping their liability of paying the amounts to the first respondent, since it is the appellant and the third respondent who have engaged the containers of the first respondent, cannot be supported, since it is not the case of the appellant and the third respondent that they have not engaged the containers of the first respondent for shipment of the cargo to UAE. 35. The first respondent cannot be mulcted with the loss for the fault committed by the appellant in sending the cargo to UAE, resulting in rejection of the same at the hands of the Customs officials of UAE. 36. At this juncture, it is to be pointed out that the appellant has tried to give a different colour, trying to fasten liability on the first respondent, who has lent his containers to the appellant and the third respondent. In Ground No. 10 of the appeal grounds, it has been averred by the appellant that unless the appellant or the consignee M/s. JDH International LLC took delivery of the cargo from Ajman Port within seven days, the first respondent would have declared it as 'abandoned ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the buyers will accept the same. He has also submitted that buyers are available in India to buy plastic waste and paper waste. In view of the above request, a direction was given by the First Bench of this Court directing the Customs officials to get instructions and file an affidavit regarding segregation of cargo. But, this request of the appellant cannot be complied with since the Pollution Control Board has seriously objected the same as the cargo is a sheer municipal waste and dealing with the same in any manner would spoil the environment in India. We appreciate the efforts put in by the Central Pollution Board in this matter in not allowing or permitting any kind of pollution into the Indian soil. 39. The entire reading of the materials would clearly show the sheer negligence exhibited by the appellant and their way of finding ways to throw the blame on somebody or other. When, as has already been pointed out supra, the appellant found that the so-called cargo was not the one for which they have placed orders and when the Customs Officials have specifically directed them to re-export the cargo to the country of origin that is USA, they should have shunted it back to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge has made to the Board an application for such sale. (2) Before making such sale, the Board shall give ten days' notice of the same by publication thereof in the Port Gazette, or where there is no Port Gazette, in the Official Gazette and also in at least one of the principal local daily newspapers : Provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of. (3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent. (4) Notwithstanding anything contained in this section, arms and ammunition and controlled goods may be sold at such time and in such manner as the Central Government may direct." "Section 62 : Disposal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ammunition and controlled goods may be sold in accordance with the provisions of sub-section (4) of Section 61. (5) The Central Government may, if it deems necessary so to do in the public interest, by notification in the Official Gazette, exempt any goods or classes of goods from the operation of this section." 43. Likewise, Sections 30 and 48 of the Customs Act, 1962 read as follows : "Section 30. Delivery of import manifest or import report. - (1) The person-in-charge of - (i) a vessel; or (ii) an aircraft; or (iii) a vehicle, carrying imported goods or any other person as may be specified by the Central Government, by notification in the Official Gazette, in this behalf shall, in the case of a vessel or an aircraft, deliver to the proper officer an import manifest prior to the arrival of the vessel of the aircraft, as the case may be, and in the case of a vehicle, an import report within twelve hours after its arrival in the customs station, in the prescribed form and if the import manifest or the import report or any part thereof, is not delivered to the proper officer within the time specified in this sub-section and if the proper office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, issued with the consent of all the parties, has filed a report, recommending to re-export the goods and consequently, the Customs officials have passed an order dated 23-11-2007 to re-export the goods, the appellant has filed the Writ Petitions No. 5989 and 5994 of 2008. 46. Having already accepted to constitution of such an expert body before the learned single Judge, the appellant is estopped from challenging the said order passed by the learned single Judge now. On a careful perusal of the entire materials on record, we are not able to find any illegality or irregularity in the recommendations made by the Expert Body i.e. the Central Pollution Control Board, to re-export the hazardous goods to the country of its origin and the Customs officials, accepting the recommendations of the Expert Body, have issued the consequential order, directing the appellant to re-export the so-called cargo to the country of its origin. Therefore, there are no merits in both the above writ petitions and accordingly, they are liable to be dismissed along with the writ Appeal. Point No. 2 is answered accordingly. 47. As we have discussed at length, the first respondent has resorted to all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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