2019 (12) TMI 796 - AT - Customs

Tribunal rules in favor of appellant on imported goods classification dispute

Pace India Versus C. C-Bangalore-Cus

Pace India Versus C. C-Bangalore-Cus - 2020 (372) E.L.T. 442 (Tri. - Bang.) Issues Involved:1. Classification of imported goods as waste/scrap.2. Jurisdiction and legality of the re-export order.3. Applicability of Section 111(d) & (m) of the Customs Act, 1962.4. Requirement of prior permission under Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016.5. Procedural lapses and burden of proof on the Department.Issue-wise Detailed Analysis:1. Classification of Imported Goods as Waste/Scrap:The appellant imported small solar cells and declared them under CTH 85414011. However, the Customs authorities classified them as waste/scrap under CTH 38256900, based on the observation that the goods were broken pieces of solar cells. The Tribunal found that only 70 kgs out of 13,599.5 kgs were broken, which does not justify classifying the entire consignment as waste/scrap. The Tribunal noted that the appellant provided sufficient documentation, including purchase orders, bills of entry, and commercial invoices, indicating the goods were small solar cells. The report from the Karnataka State Pollution Control Board (KSPCB) confirmed that the cut pieces could be used for various solar applications, supporting the appellant's classification.2. Jurisdiction and Legality of the Re-export Order:The Tribunal held that the order for re-export of the goods on payment of redemption fine was beyond the statutory provisions of the Customs Act, 1962. Section 125 of the Customs Act does not confer the authority to impose conditions such as re-export upon redemption. The Tribunal cited the case of HBL Power Systems Ltd. Vs. CC, Visakhapatnam, where it was established that the adjudicating authority has no power to compel re-export as a condition for redemption. Thus, the re-export order was set aside.3. Applicability of Section 111(d) & (m) of the Customs Act, 1962:The appellant argued that there was no mis-declaration or wrongful classification with the intent to evade customs duty. The Tribunal found that the appellant's declaration was based on the purchase order and supplier’s invoices. The reports from IISc, CPCB, and KSPCB did not indicate that the goods were hazardous waste. Therefore, the provisions of Section 111(d) & (m) were not applicable, and the confiscation and penalty were unjustified.4. Requirement of Prior Permission under Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016:The appellant contended that the imported small solar cells were not listed in any Schedule of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016, and thus did not require prior permission. The CPCB report supported this claim, stating that the imported goods did not appear in any Schedule of the Rules. The Tribunal agreed, noting that the KSPCB categorized the solar industry under the White category, which does not require environmental clearances.5. Procedural Lapses and Burden of Proof on the Department:The appellant argued that the burden of proof for classification lies with the Department, which failed to provide corroborative evidence. The Tribunal found that the Department had not made any effort to prove the classification with documentary evidence and relied solely on the breakage of some goods. The Tribunal emphasized that the Department must prove misclassification with substantial evidence, which was lacking in this case.Conclusion:The Tribunal concluded that the impugned order was not sustainable in law. It set aside the re-export order and directed the Customs authorities to release the consignments within two weeks. The appeal was allowed, and the Tribunal emphasized the importance of proper classification and adherence to statutory provisions.