TaxTMI 
TaxTMI 
2014 (11) TMI 325
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....ny response. Therefore, the petitioner has come up with the above writ petition seeking the issue of a Writ of Mandamus to direct the respondents to assess and permit the clearance of 129 packages of the so called second hand Digital Multifunction Print and Copying Machines, forming the subject matter of the Bill of Entry dated 26.5.2014, upon payment of applicable duties of customs. 3. I have heard Mr.N.Viswanathan, learned counsel for the petitioner and Mr.V.Sundareswaran, learned Senior Panel Counsel appearing for the respondents. 4. The Department of Commerce, Ministry of Commerce and Industry, Government of India, issued a Foreign Trade Policy with effect from 05.6.2012. Under Chapter II of the said Policy, it was stated that exports and imports shall be free, except when regulated and that such regulation would be as per the Foreign Trade Policy. Paragraph 2.7 of the said Policy stipulated that any goods/service, the export or import of which is 'restricted', may be exported or imported only in accordance with an authorisation/permission/licence or in accordance with the procedure prescribed in a Notification/public notice issued in this regard. 5. Insofar as the s....
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....an be best understood only if the operative portion of the show cause notice in paragraph 9 is extracted. Hence, it is extracted as follows : "In view of the above, the importer M/s.City Office Equipment, Chennai is hereby called upon to show cause to the Joint Commissioner of Customs, Group 5, Customs House, Chennai-600001 as to why : (a) the declared value of the goods namely 102 units of used Digital Multifunction Print and Copying Machine imported under the Bill of Entry No.5602113 dated 26.5.2014 should not be rejected under Rule 12 of the Customs (Determination of Value of Imported Goods) Rules, 2007 and re-determined as USD 24932.77 (CIF) equivalent to Rs. 14,98,459/- (CIF) under Rule 9 of the said Rules. (b) the goods namely 102 units of used Digital Multifunction Print and Copying Machines imported under the Bill of Entry No.5602113 dated 26.5.2014 should not be held as prohibited under Sub-Section (u) of Section 11 of the Customs Act read with Sub-Section (3) of Section 3 and 11 of Foreign Trade (Development and Regulation) Act, 1992 and Rules and Orders issued thereunder read with Para 2.17 of Foreign Trade Policy 2009-14 as amended vide DGFT Notification No.35/(RE-20....
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....hibition; (5) that despite the denial of permission to the petitioner way back in December 2013, the petitioner had the audacity to import the goods; and (6) that in the light of a show cause notice already issued to the petitioner, proposing to confiscate the goods, the goods cannot be released. 11. In order to test the correctness of the contentions raised on both sides, it is necessary to have a look at the provisions of the Customs Act, 1962, The Foreign Trade (Development and Regulation) Act, 1992, The Foreign Trade (Regulation) Rules, 1993 and the Hazardous Material (Management, Handling and Transboundary) Rules, 2007. THE CUSTOMS ACT, 1962: 12. The expression " Prohibited Goods" is defined in Section 2(33) of the Customs Act, 1962 to mean "any goods, the import or export of which is subject to any prohibition under the Customs Act or any other law for the time being in force, but it does not include any such goods in respect of which, the conditions subject to which the goods are permitted to be imported or exported have been complied with." 13. Unfortunately, the Act does not define the expression "Restricted Goods". But the definition of the expressio....
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....is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: PROVIDED that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." 17. Section 110A enables the provisional release of goods, pending adjudication. From the language of Section 110A read with Section 125, it is clear that both these provisions do not distinguish between goods which are prohibited from being imported into or exported out of India and goods in respect of which there is no such prohibition. 18. In case, the imported good....
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...., the provisions relating to adjudication, confiscation etc., would also become applicable in such cases. 20. Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992, prohibits the import or export of goods except in accordance with the provisions of the Act, the Rules and orders made thereunder and the Foreign Trade Policy for the time being in force. The consequences of contravention of the provisions of the Foreign Trade (Development and Regulation) Act, 1992, the Rules and orders issued under the Act and the Foreign Trade Policy are spelt out in sub-sections (2) to (9) of Section 11. Section 11(8) makes the goods imported in contravention of any provision of the Foreign Trade (Development and Regulation) Act, liable for confiscation. Sub-sections (8) and (9) of Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 are to be noted and hence they are reproduced as follows: "(8) Where any contravention of any provision of this Act or any rules or orders made thereunder or the foreign trade policy has been, is being, or is attempted to be made, the goods (including the goods connected with services or technology) together with any package, cover....
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....the fact that the goods, whose import is restricted in terms of the Foreign Trade Policy, should be construed to be prohibited goods, there is no bar for the release of the goods: (1) either under Section 125(1) of the Customs Act, 1962 upon payment of fine in lieu of confiscation; or (2) in terms of Section 11(9) of the Foreign Trade (Development and Regulation) Act, 1992 upon payment of redemption charges. IV. HAZARDOUS WASTES RULES : 24. In exercise of the powers conferred under Sections 6, 8, and 25 of the Environment (Protection) Act, 1986, the Central Government issued Hazardous Material (Management, Handling and Transboundary Movement) Rules, 2007. As per Rule 2 of these Rules, they would apply to the handling of hazardous wastes as specified in the Schedules, but not to (i) waste water and exhaust gases; (ii) wastes arising out of the operation from ships; (iii) radioactive wastes; (iv) biomedical wastes; and (v) municipal wastes. There are seven Schedules to these Rules. Schedule I contains a list of processes generating hazardous wastes. Schedule II contains a list of waste constituents with concentration limits. Schedule III is divided into two parts, namely Part A and....
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.... 'hazardous waste' is defined in Rule 3(l) of the Rules as follows : 'Hazardous waste means any waste, which by reason of any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics causes danger or is like to cause danger to health or environment, whether alone or when in contact with other wastes or substances, and shall include - (i) waste specified under column (3) of Schedule-I; (ii) waste having constituents specified in Schedule - II, if the concentration is equal to or more than the limit indicated in the said schedule; and (iii) waste specified in Part A or Part B of Schedule III in respect of import or export of such wastes in accordance with Rules 12, 13 and 14 or the wastes other than those specified in Part A or Part B if they possess any of the hazardous characteristics specified in Part C of that Schedule." 28. Therefore, if the item imported into India is one that falls under Part A or Part B of Schedule III, it would be deemed to be an hazardous waste within the definition of the expression under Rule 3(l), only in accordance with Rules 12 to 14. Rule 12 makes the Ministry of Environment and Forests as the Noda....
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.... in Form 7 or Form 8 to the Central Government, together with Prior Informed Consent, wherever applicable and should send a copy of such application to the concerned State Pollution Control Board. The application so submitted has to be examined by the Ministry of Environment and Forests under Sub-rule (2) of Rule 16, with reference to the observations made by the State Pollution Control Board. Once permission is granted, the same has to be communicated by the Ministry of Environment and Forests to the Central Pollution Control Board, the State Pollution Control Board as well as the concerned Port and Customs Authorities. 31. What a Customs Authority is obliged to do, is also indicated in Rule 16(6). As per this rule, the Customs Authority should collect three randomly drawn samples of the consignment, before clearing it as per the Customs Act, 1962, for analysis and retain the report for two years. The importer is also obliged to maintain a record of the hazardous wastes imported by him. 32. The consequences of importing hazardous wastes into India are spelt out in Rule 17. If an import of hazardous wastes is made into India without the permission of the Central Government, it is....