TaxTMI 
TaxTMI 
2017 (10) TMI 812
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....Pollution Control Regulations applicable to e-waste. Entertaining a view that the imported goods are in violation of the above mentioned various provisions, the Customs authorities conducted enquiry and subjected the goods to examination and follow up action. On completion, proceedings were sought to be initiated against the appellants for confiscation of goods and imposition of penalties. In the meantime, the appellants approached Hon'ble Kerala High Court for release of cargo pending clearance with the Customs authorities. Hon'ble High Court vide order dt. 23/01/2017 directed the Customs authorities to decide the case within 3 months. The appellants filed Writ appeal against the said order which was disposed of vide order dt.10/02/2017 with a direction to the appellant to approach the Customs authorities, waiving the show-cause notice, to be heard and decided by the competent authorities. Accordingly the appellants approached the Commissioner for decision. The Commissioner served a show-cause notice which was again contested by the appellants. However, the adjudicating authority heard the appellants and decided the case resulting in the impugned orders. 3. The original authority....
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.... per the Schedule VIII attached with the Rules. Entry 4(j) of the schedule is relevant to the present import. It prescribed 5 documents with reference to import of impugned goods. The appellants fulfilled all the conditions and as such, there is no violation of Hazardous Waste Rules in the present import. d. Regarding violation of Import Policy, the appellant did not contest on merits and only submitted that such violation should not result in absolute confiscation of goods or compulsory re-export of the said goods as ordered in the impugned orders. Reliance was placed on various decided case laws to claim that redemption for home consumption should have been allowed. e. The appellant (M/s. Atul Automation) have been regularly importing the said items over a long period and cleared through Calcutta, Chennai and Cochin Customs and their consignments have been cleared on redemption fine. He submitted copies of orders issued by the jurisdictional authorities in this regard. He also relied on certain case laws to support that clearance of such MFDs on redemption fine is legally sustainable. f. Regarding enhancement of value, the appellant did not contest the issue. g. Appellan....
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....he Hazardous Waste Rules stipulates that the declaration in Form -6 and authorisation in Form-7 are to be filed at the time of import. In the present case, the importer failed to adhere to the said condition. 7. We have heard both sides extensively and perused the appeal records. We note that the dispute in the present case relates to the eligibility of the importer to clear the goods for home consumption as a trader. They are not contesting the confiscability of the imported items and penal consequences thereof. It is admitted that the import is in violation of Import Policy applicable during the material time. The goods are used items and require an import licence for importation. The point which is strongly pleaded before us is that they have not violated the Hazardous Waste Rules, 2016 and they are entitled for redemption of the goods as absolute confiscation or option to re-export only, is not legally sustainable. Penalties under Section 114AA are also contested. We also note that enhanced valuation of used items now imported, is also not contested. 8. On the first point regarding importation being in violation of Import Policy, the same being an admitted fact, does not requ....
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....dian authorities cannot be correlated and now with the Bills of Lading are from various ports of USA etc. As such, the country of origin certificate to be issued by competent authority of that country is not satisfactorily produced in the present consignments. To that extent, there is a violation of the said rules. 11. The next condition is regarding certificate issued by inspection agency approved by DGFT regarding functionaility and residual life of the goods. We note that the original authority held against the appellants regarding violations of these provisions. The present consignments which are imported for which Bills of Entry were filed in October to November 2016 are governed by the 2016 Rules which superseded the 2008 Rules. The learned counsel for the appellant drew our attention to the decision of Technical Review Committee under the 2016 Rules. The decision of the meeting held on 18th and 19th October 2016 recorded that the Extended Producer s Responsibility (EPR) authorisation requirement under 2016 Rules are to be produced on application to the Pollution Control Board and a time line is prescribed for the same. After considering these time lines, the Committee decid....
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....ct, 1962. We note that the importer himself have imported a large number of consignments through Calcutta Port and also other ports including Cochin, and these were in fact adjudicated and allowed for clearance on payment of appropriate redemption fines and penalties. We note that even through the Cochin Port such consignments have been allowed for clearances including for the present appellants. No substantial change in the law subsequently has been discussed in the impugned order to change the earlier decision. We also note that the Hon'ble Madras High Court in City Office Equipments [2016(336) ELT 19 (Mad.)] examined the scope of such infringement and their implication for the application of Section 125. The High Court observed that even if the goods are liable for confiscation, the same can be released on payment of redemption. The High Court was examining the provisions of FTDR Act read with Section 125(1) of Customs Act, 1962. The Hon'ble Punjab & Haryana High Court in Horizon Ferro Alloys Pvt. Ltd. Vs. UOI [2016(340) ELT 27 (P&H)] examined the scope of Section 125 and observed as below:- 5. ..... ..... .....Section 125 of the Act leaves option to the officer to grant the b....
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....on 125 if the goods were not expressly prohibited for import. The Tribunal was dealing with import of gold in violation of the provisions of Policy. 17. In view of the above discussions and analysis, we find that while confiscation of the imported items cannot be faulted with, we note that the appellants are entitled for release of the goods on payment of appropriate redemption fine. The original authority allowed the redemption of goods, though only for re-export, on payment of fine of Rs. 1 crore in respect of M/s. Atul Automation P. Ltd., and on payment of Rs. 30 lakhs in case of M/s. Parag Domestic Appliances Ltd. 18. The total assessable values for the consignments imported by M/s. Atul Automation Ltd. and M/s. Parag Domestic Appliances are about Rs. 5.2 crores and Rs. 1.37 crores respectively. These are enhanced values as per impugned order. The learned counsel for appellants pleaded that the redemption fines of 20% / 22% are harsh. Considering the detention / demurrage charges for one year, as the goods were lying in Port, and also based on past practice in such cases, he pleaded for reduction of fines. 19.1. We note that Hon'ble Kerala High Court in Office Devices [2009(....