TaxTMI 
TaxTMI 
2011 (8) TMI 950
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....ines and secondhand Photocopier Machines and it accessories, parts and consumables. They are also having Code Numbers allotted under the Importer and Exporter Code issued by the respective offices of the Zonal Joint Director General of Foreign Trade. They had also imported from various overseas suppliers in U.S.A., Finland, Germany, Italy and Sweden. The machines were sought to be imported through Chennai Customs. It was stated that the Customs Officers with the assistance of the approved Chartered Engineer were directed to examine the goods. Though applications were submitted long back for the purpose of engaging Chartered Engineers in the prescribed format as directed by the third respondent Commissioner of Customs, (Seaport-Exports), Customs House, Chennai, no action was initiated. The officers working under the third respondent prior to the issuance of the impugned order and the consequent note instruction did not permit the clearance of the subject goods in the normal course, but invariably subjected the goods to first check causing 100% examination with the assistance of the locally approved Chartered Engineer under the pretext that the goods are being procured from the deale....
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....e oral instructions of the higher authorities, the authorities during May, 2011 had insisted on the approved Chartered Engineer to show how further enhance the appraisement of the value of the goods believing that such enhancement would stand as a deterrent against the import of such goods. They also came to know that warnings were issued to such Chartered Engineers that any failure to cooperate with the department will lead to delist from the approved list, thereby rendering them jobless. It is around this time, the new Commissioner had assumed the office of the third respondent and had issued the Standing Order No.13/2011, dated 14.6.2011 relating to the valuation of the second hand goods in general followed by note instruction, dated 14.6.2011 to all concerned specifically relating to the import of the old and used photocopiers and multifunction machines alone prescribing various modalities and cumbersome procedure. If these procedures are followed, the clearance of goods out of customs will become next impossible. 5. It was stated that only the Central Board of Excise and Customs alone are competent to issue instructions with a view to maintain uniformity in assessmen....
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....e or e-waste. 7. It was further stated that the CESTAT, Bangalore having decided the issue in favour of the importers, the respondents cannot start a different procedure so as to bypass the orders passed by various courts. The respondents without any orders of the court and obtaining report from the Tamil Nadu Pollution Control Board to hold the goods as hazardous waste, it is nothing but an exercise to get over the orders of this court. There was no necessity to issue such a standing order. The Standing Order was issued on their own without any source of power. Therefore, it was prayed that this Court must set aside the Standing Order No.13 of 2011, dated 14.6.2011 and the consequent instruction in Note No.4 dated 14.6.2011 issued by the third respondent. 8. Heard the arguments of Mr.Arvind P. Datar, learned Senior Counsel leading Mr.N.Viswanathan, counsel appearing for petitioners and Mr.K.Ravi Anantha Padmanaban, learned Standing Counsel for respondents Excise Department. 9. Mr.Arvind P. Datar, learned Senior Counsel once again re-emphasised the same contentions. He also referred to a departmental clarification issued by the Central Board of Excise ....
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....Telecommunications to the effect that the model LSP 340 was in fact covered by the phrase 'cellular telephone'. Since there is no dispute that the technology used in LSP 340 and the handheld mobile phone is the same, there is no warrant to limit either the tariff entry or the exemption notification to handheld cellular phones. Neither the range nor the size would make any difference." 10. The learned Senior Counsel also referred to a judgment of the Supreme Court in Union of India vs. Inter Continental (India) reported in 2008 (226) ELT 16 (S.C.) for contending that the department by issuing the circular subsequent to the notification cannot add a new condition to the notification, thereby restricting the scope of exemption notification or whittling it down. In doing so, the Supreme Court quoted with approval the judgment of TATA Teleservices Ltd.'s case (cited supra). The following passage found in paragraph 6 of the judgment may be usefully extracted below: "6. We entirely agree with the view taken by the High Court that the department could not, by issuing a circular subsequent to the notification, add a new condition to the notification thereby restricting t....
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....ions should carefully and strictly implement the provisions of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the purview of entry B 1110 of Part B of Schedule III of the said Rules, indicating second hand computers, would require the permission of the Ministry of Environment and Forests for import into India. It merits mention that the field formations should also refer to Rule 17 of the said Rules that treats contravening imports as illegal traffic requiring the importer to re-export the wastes at his cost within 90 days from the date of arrival. We must ensure that India does not become a destination for dumping junk electronic products. 5. These instructions may be brought the notice of all concerned by way of issuance of a suitable Public Notice/Standing Order. 6. Difficulties, if any, in implementation of these instructions may be immediately brought to the notice of the Board." 13. He also submitted that an order dated 27.7.2011 was issued by the third respondent in respect of quality of inspection conducted by the Chartered Engineers M/s.SGS India Pv....
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....dous waste. The residual life of each of these machines have to be certified by the Chartered Engineer. This depends on the year of manufacture, usage, wear and tear and the general condition of the machine. It also depends on the fact that each machine at the time of manufacture is rated for certain period of healthy functioning by the original manufacturer. Therefore, the proper officer has to ensure that the Chartered Engineer shall take down all the details available with each machine and contact the original manufacturer and in consultation with them give the residual life in a scientific way." 16. The impugned Standing Orders are not public documents and they are issued with a view to the subordinate officers to utilize the assistance of the Chartered Engineers. The communication was never addressed to the petitioners who are third parties to the impugned order The impugned orders need not be orders issued in terms of Section 151-A of the Customs Act. Section 151-A of the Customs Act reads as follows: 151-A. Instructions to officers of customs. The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the ....
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....ted goods in question are digital multifunctional print and copier machines as per the inspection report reproduced in para 6.3. of this order; if that be so we find that the sdaid machines cannot be called as photocopier machines as photocopier machines per se, have been specifically identifiable as photocopier machines in the explanatory notes to HSN, which we have referred as there were no other corresponding notes in Customs Tariff to come to a conclusion..... 6.7....It is not in dispute in this case that the imported goods are combination of printers, copying machines and/or facsimile machines. Hence, the "digital multifunction print and copier machines" cannot be termed as photocopiers to attract the bar of para 2.17 of the FTP." 20. It is in that view of the matter, the confiscation and the consequent penalties were set aside. But the passages reproduced above will show that the assistance of the Chartered Engineer were sought for and their report was mainly relied upon to arrive at a conclusion and that too it is with reference to classification and not for valuation. But even the Chartered Engineers' report referred to therein, i.e. M/s.SGS India Pvt. L....
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.... Shivam International, Sikar vs. Commissioner of Customs, Cochin and Additional Director, Directorate of Revenue Intelligence, Cochin, had observed as follows: "...having regard to the fact that there is large scale import of e-waste into India, it cannot be stated that the action of the Department that insisting that each item should be connected to a power source to find out, whether it is in a working condition or not is arbitrary or without jurisdiction. The Hon'ble Kerala High Court further observed that the Department cannot be blamed for taking steps to ensure that the goods imported are not e-waste. Accordingly, the Court ordered for release of only such of those machines, which are found to be working after connecting them to a power source and the petitioner paying the Customs duty and other charges." 23. When the matter was taken on appeal, a division bench of the Kerala High Court in W.A. No. 2122 of 2010 by an order dated 22.12.2010 had observed as follows: "....the rights of the importers and the obligation of the State to enforce the provisions of the Environment (Protection) Act, 1986, they deem it appropriate to dispose of the writ pet....
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....Supreme Court in Province of Bombay v. Khushaldas S. Advani reported in 1950 SCR 621 = AIR 1950 SC 222 and in paragraph 6, the Supreme Court had observed as follows: "6........The word 'quasi-judicial' itself necessarily implies the existence of the judicial element in the process leading to the decision. Indeed, in the judgment of the lower court, while it is stated at one place that if the act done by the inferior body is a judicial act, as distinguished from a ministerial act, certiorari will lie, a little later the idea has got mixed up where it is broadly stated that when the fact has to be determined by an objective test and when that decision affects rights of someone, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a prelimin....
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....ay become rudderless. 11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India1. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which....
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....out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. 'Sustainable Development' as defined by the Brundtland Report means 'Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient feature....