TaxTMI 
TaxTMI 
2009 (4) TMI 826
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....lied free of charge by the supplier. It was stated that the segregated copper as well as other waste material would be re-exported back to suppliers who were in U.S.A. The goods were of Australian origin. The importer claimed exemption from duty this claim was turned down. Aggrieved by that, he preferred an appeal which was dismissed. Thereafter the appellant went on appeal before the CESTAT and the matter was pending before the CESTAT. In the mean time, the subject consignment was examined in the presence of Scientists of the National Metallurgical Laboratory (NML). It was found that in addition to lead scrap, PVC/plastic insulated copper cables/wires were also imported. The NML gave a report dated 22-3-2005 which showed that only 60% of the materials was Lead covered Copper cable Scrap Relay and that the remaining 40% consisting of PVC/plastic insulated copper cables/wires could be considered as 'Druid' as per ISRI specifications. The various metals present in the two samples weighing 12.48 kgs. and 6.33 kgs. representing Lead covered copper Cable Scrap Relay and PVC/Plastic insulated copper cables/wires Scrap Druid respectively would show that the rubber and plastic content in '....
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....ort conditions." Thereafter, the Commissioner (Appeals) held that the value declared is a tentative value and therefore, the scrap cannot be confiscated under Section 111(m) for undervaluation. He thus held that since the goods were 'restricted goods' even if they were imported for job work since the unit had not registered itself as required under Import Licensing notes held that it was liable for confiscation under Section 111(d) of the Customs Act, 1962. He upheld the confiscation under Section 111(m) and (d) on account of misdeclaration of description and the violation of the import condition. The penalty however, was reduced. The Tribunal took a very superficial view of the subject and referring to para 4.2.7 of the Foreign Trade Policy, held that therefore, the subject goods i.e., copper scrap Druid could be imported even if it is not registered with the Ministry of Environment and Forest and therefore, the confiscation under Section 111(m) was not sustainable and remanded the matter. 4. In view of the aforesaid finding, the Tribunal directed the de novo adjudication should be completed within a period of three months. This order was passed on 15-9-2006. The Department ....
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....gs that have taken place in the interregnum would be non-est in law. 8. The learned counsel appearing for the respondent after submitting that the appeal had in fact become infructuous, since the remand order had been given effect to also contested the appeal on merits. The learned counsel referred to Notification No. 32/97 where it is stated that the goods imported into India for execution of an export order and referred to in the Exim Policy, including mentioned as restricted in ITC (HS) but excluding prohibited items, supplied free of cost, may be permitted for the purpose of jobbing without a licence/certificate/permission as per the terms of notification issued by Department of Revenue from time to time. Similarly, import of goods for carrying out repairs, re-conditioning, re-engineering, testing etc. shall be allowed as per the terms and conditions of the Customs Notification even though the goods may be restricted for imports under the Exim Policy/ITC (HS) Classifications of Imports and Exports Book. It was submitted that this is a job work strictly and therefore, unless the goods are prohibited, the import of goods must be permitted without a licence or certificate, and ....
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...., it is clear that upon the reversal of the original order the intermediate proceedings that took place pending the above decision were rendered infructuous. (ii) in AIR 1951 Madras 218 (Kota Kanakayya and Anr. v. Kamepalli Lakshmayya and Ors.), a learned Judge of this court, A.V. Viswanatha Sastry, J., was hearing an appeal against the order of remand. The counsel for the respondent raised a preliminary objection that the order of remand had been carried out and the suit decided and therefore, the remedy of the defendants was only to file an appeal against the suit decree and that the appeal against the order of remand must be dismissed on that ground. The learned Single Judge is not inclined to accept that and observed that there is no provision in the Court, "any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal" and that, "Abrogation of a right of appeal given by statute cannot be imported by courts for reasons founded on practical convenience" and he said, "The maintainability of an appeal against an order of remand should not in my opinion, be made t....
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....appeal to be heard on merits. (See Nagar Mahapalika v. State of U.P. (2006 5 SCC 127). Similar view was also taken in Nagesh Datta Shetti v. State of Karnataka (2005 10 SCC 383)." In view of the above rulings, we will not dismiss the appeal as infructuous or not maintainable, but we shall decide the appeal on merits. 10. The Commissioner (Appeals) had taken note of the environmental impact of the import of 'Druid' have, which was totally lost sight of by the Tribunal which took into account only the paragraphs in the Foreign Trade Policy which allows the import of goods of job work without a licence. We find that the Appellate Authority had even doubted whether the druid purportedly to be exported would be permitted in the countries which is alleged to be the destination, since those countries may not permit waste materials from India. We also know that in his own statement the respondent had said that the segregation of scrap in USA is very expensive and that is why they chose India for segregation of this scrap. The need for getting registered with the Ministry of Environment and Forest to import these materials is very clear. The Hazardous Waste Management Rules also deals....
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....d not be allowed to happen." 12. We think that the warning could not have been better phrased. In 2005 (10) SCC 510 (Research Foundation for Science Technology National Resource Policy v. Union of India), the Supreme Court held thus : "1. Hazardous wastes are highly toxic in nature. Industrialisation has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principles of sustainable development so as to sustain industrial growth. The hazardous waste requires adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other allied problems gave birth to the Basel Convention. The key objectives of the Basel convention are: "to minimise the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundary movement of hazardous wastes." 13. Fourteen terms of reference were ....
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....g at naught Rule 13. This aspect too requires to be examined by the Ministry of Environment and Forests and affidavit filed within 8 weeks."... In the order dated 23-9-2003 we find this observation or apprehension. 15. In the direction dated 24-9-2003, the Supreme Court insisted that since, "The HW Rules allow import of certain items subject to fulfilment of conditions. The requisite notification shall be issued making the compliance with the said conditions mandatory before the imported consignment is cleared." 16. The Scrap Specifications defines "druid" as "Insulated Copper Wire Scrap" which "shall consist of copper wire scrap with various types of insulation. To be sold on a sample or recovery basis, subject to agreement between buyer and seller." 17. In the Hazardous Wastes (Management and Handling) Rules, 1989 Schedule III which deals with lists of wastes applicable for only import and export includes Basel No. A1090 - "ashes from the incineration of insulated copper wire" and List B of the same Schedule includes Basel No. B1010 - "copper scrap". There is an asterisk mark which indicates that import of copper scrap covered under ISRI code "Druid" and Jelly fill....
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....e fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance or goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Ors. AIR 1971 SC 293 wherein it was contended that the expression 'prohibition' used in Section 111(d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by Clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus :- "...What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to "Any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibitio....