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2013 (7) TMI 840

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....ard is not a prescribed authority for identification of Hazardous Waste as per the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 read with various Schedules thereof. (3) Whether the order of the CESTAT dated 17.04.2012 is correct in directing the department to clear the goods without any evidence to establish that the impugned goods are not Hazardous Waste, and despite the legal position within the aforesaid Rules." 2. The respondent/importer has also filed a Writ Petition before this Court seeking a Writ of Mandamus to direct the Revenue to complete the adjudication proceedings in respect of its Bill of Entry Nos.790386 and 790354, both dated 24.2.2011 within a period of one month. The importer also filed a Miscellaneous Petition in the Writ Petition seeking release of the consignment of imported goods, namely, used tyres of different sizes and waive payment of demurrage, rent and detention charges in terms of Regulation 6(1) of the Handling of Cargo in Customs Areas Regulation, 2009. 3. The facts leading to the filing of the Civil Miscellaneous Appeal by the Revenue and the Writ Petition by the importer are as follows: The petitioner herein imp....

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....yres, excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse requires license from Ministry of Environment and Forests. The importer was required to register himself with the Ministry in terms of Rule 14 for importing any hazardous waste for purposes of recycling and reuse. In the absence of compliance, the importer has to re-export the said hazardous waste within a period of 90 days from the date of import. In the absence of non-compliance of Rules for importing any hazardous wastes for the purpose of recycling, reclamation or direct reuse and with the description of the subject goods being suppressed, the importer was called upon to show cause as to why the imported goods under the Bill of Entry dated 24.2.2011 should not be held as waste pneumatic tyres and the transaction values of goods imported should not be rejected. Apart from that, in view of misdeclaration of the value and the violation of the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, confiscation under Section 111(m) and 111(d) of the Customs Act, 1962 read with Rule 14 of the Hazardous Wastes (Management, Handling and Transbo....

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.... appeal before the CESTAT. So too the Revenue. 7. By order dated 23.12.2011, while confirming the remand by the first Appellate Authority, the Tribunal modified the order on fine and penalty that even before arriving at a decision, the same could not be levied. Thus the Tribunal directed the original authority to decide the matter afresh within a month's time from the date of receipt of the order of the Tribunal. Subsequent thereto, the importer filed a petition in Miscellaneous Application No.242 of 2012 on 16.3.2012 before the Tribunal, pointing out that even as on the date of passing of the order, the Revenue had had the benefit of the letter from the Tamil Nadu Pollution Control Board dated 14.10.2011, which was not submitted before the Tribunal when the case was heard by the Tribunal. According to the importer, the letter from the Pollution Control Board contained nothing prejudicial to the Revenue; consequently, the importer sought for modification of the order seeking release of the consignments. The Tribunal passed an order dated 17.4.2012 allowing the prayer of the importer and thereby directed the release of the goods in terms of an order passed under similar circumstanc....

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....peals of the Revenue and set aside the order of the learned single Judge, ordering release on terms. The importers were directed to send back the imports to the countries of origin at their own cost and expenditure immediately. Thus, the order in the Writ Petitions (which in fact was only in Miscellaneous Petitions), which persuaded the Tribunal, is no longer there for the importer to seek release of the goods on terms. 11. Learned Standing Counsel appearing for the Revenue pointed out that when the very basis of the order of the Tribunal is no longer there, the order of the Tribunal directing release of the goods on certain terms has to be necessarily set aside and the importer cannot have free clearance of the goods imported. He pointed out that as contended before the Tribunal, the Pollution Control Board's report dated 14th October, 2011 or for that matter 7th March, 2012, discussed nothing about the hazardous character of the imported goods. In the circumstances, the question of the importer having a straight clearance does not arise. 12. Per contra, learned counsel appearing for the Writ Petitioner submitted that the order of this Court in the Writ Appeal is now a subject m....

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....11, had correctly directed the authorities to obtain a report from the Pollution Control Board. It was only the assessee/importer, who filed the Miscellaneous Petition before the Tribunal and sought for re-consideration of the order passed on the basis of the report of the Pollution Control Board dated 14.10.2011, which was available at the time when the Tribunal originally passed the order on 23.12.2011. If the Tribunal had gone into the certificate issued by the Pollution Control Board dated 14.10.2011 to find out as to whether it had categorically pronounced on the hazardous character of the imported material, it is one thing for this Court to say that if a finding of fact is there, the Revenue would not be justified in resisting the order of release. As already pointed out, a cursory reading of the Pollution Control Board certificate shows that it has not pronounced anything on the hazardous character of the imported material at all. On the other hand, it merely referred to the earlier two reports as well as the physical condition of the tyres imported and ultimately observed as follows: "On examining the condition of the tyres it is observed that the buttons and grooves 12" ,....