AI Drafter 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2020 (9) TMI 137
X X X X Extracts X X X X
X X X X Extracts X X X X
....e ground that they have been classified under CTH 40040000. The respondents after examination came to the conclusion that the goods have been misdeclared. Though they had been declared as used tyre with one cut in bead wire, a random examination of the goods revealed that there was no cut in the bead wires. Therefore, it was referred to SIIB for detailed examination for import assessment. As per the examination report of the said officers, the cargo was found to be used rubber tyres in pressed bales. But there was no cut in the bead wires. Though import of used tyres with one cut in the bead wire is free, import of used rubber tyres is restricted. Hence, on the reasonable belief that the importer has mis-declared the cargo in order to circumvent the import restriction imposed by the extant Foreign Trade Policy, the entire cargo was seized for further investigation under the Customs Act, 1962. Following such seizure, the petitioners made a request for provisional release in terms of Section 110A of the Customs Act, 1962. Since the request was not complied with, these writ petitions came to be filed. 3. The petitioners' request is opposed by the respondents. The respondents ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll apply in Form 5 along with the documents listed therein, to the Ministry of Environment, Forest and Climate Change for the proposed import together with the prior informed consent of the exporting country in respect of Part A of Schedule III waste, and shall send a copy of the application, simultaneously, to the concerned State Pollution Control Board for information and the acknowledgement in this respect from the concerned State Pollution Control Board shall be submitted to the Ministry of Environment, Forest and Climate Change along with the application. (2) For the import of other wastes listed in Part D of Schedule III, the importer shall not require the permission of the Ministry of Environment, Forest and Climate Change. However, the importer shall furnish the required information as per Form 6 to the Customs authorities, accompanied with the following documents in addition to those listed in Schedule VIII, wherever applicable. For used electrical and electronic assemblies listed at serial numbers 4 (e) to 4(i) of Schedule VIII (Basel No. B1110), there is no specific requirement of documentation under these rules: (a) the import license from Directorate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... so maintained shall be made available for inspection. (8) The importer of the hazardous and other wastes shall file an annual return in Form 4 to the State Pollution Control Board on or before the 30th day of June following the financial year to which that return relates. (9) Samples of hazardous and other wastes being imported for testing or research and development purposes up to 1000 gm or 1000 ml shall be exempted from need of taking permission for import under these rules. (10) The Port and Customs authorities shall ensure that shipment is accompanied with the movement document as given in Form 6 and the test report of analysis of the waste, consignment, wherever applicable, from a laboratory accredited or recognised by the exporting country. In case of any doubt, the customs may verify the analysis." "15. Illegal traffic.- (1)The export and import of hazardous or other wastes from and into India, respectively shall be deemed illegal, if,- (i) it is without permission of the Central Government in accordance with these rules; or (ii) the permission has been obtained through falsification, mis-representation or fraud; or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... re-export the same. This decision was followed in Universal Trading Co. vs. The Commissioner of Customs, Kandla, 2014 (313) E.L.T 164 (Tri-Ahmd.,). The learned counsel drew my attention to the decision reported in 2015 (329) E.L.T 489 (Tri-Delhi), 2017 (347) E.L.T 4 (All.,), 2013 (297) E.L.T 184 (Mad.,) and 2012 (275) E.L.T 528 (Bom.,). Since the learned counsel for the petitioners placed heavy reliance on the decision of the Hon'ble Supreme Court reported in 2019 (365) E.L.T 465 (S.C) (Commissioner of Customs vs. Atul Automations Pvt., Ltd.), the learned standing counsel drew my attention to the decision of the Hon'ble Division Bench reported in 2019 (367) E.L.T 920 (Mad) (Commissioner of Customs, Chennai - II vs. City Office Equipment) in which Atul Automations Pvt., Ltd, case has been distinguished. The learned standing counsel called upon this Court to dismiss the writ petitions. 7. I carefully considered the rival contentions and went through the materials on record. I must straight away observe that the respondents are not adopting a consistent stand. Their case is that the petitioners had misdeclared the imported goods. The relevant Chapter heading is as follows ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esent consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court. 9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made Under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Respondents by the Central Pollution Control Board before the goods have been cleared." After such reasoning, the appeals filed by the Commissioner of Customs were dismissed by the Hon'ble Supreme Court. 8. It is true that this decision was distinguished by the Hon'ble Division Bench of the Madras High Court in the decision reported in 2019 (367) E.L.T 920 (Mad) (Commissioner of Customs, Chennai - II vs. City Office Equipment). But, on a careful perusal of the factual matrix obtaining in the said case, I am of the view of that the Division Bench decision is clearly distinguishable. The Division Bench noted that the import of the second hand machines are allowed for clearance subject to fulfillment of certain conditions which included registration with BIS and that the said condition was not fulfilled. This is evident from the discussion found at Paragraph No.26 of the said order which reads as under : "26. Considering the factual position, the respondent would not be entitled to make a prayer for provisional clearance, as there is non compliance of the vital requirement regarding BIS certificate as required under Electronics and Information Technology Goo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require." 10. Of course, the contention urged by the learned standing counsel with reference to Rule 12 (4) r/w.Rule 15 has to be answered. Interestingly, this point has also been considered in Atul Automations decision. The Hon'ble Supreme Court after referring to Rule 15 points out that the Customs Act, 1962 does not provide for re-export. There is another decision reported in 2015 (316) E.L.T 199 (Mad) (City Office Equipments vs. Commissioner of Customs) in favour of the petitioners. The learned Judge after elaborate discussion of the statutory scheme obtaining in the Customs Act, 1962, the Foreign Trade Development and Regulation Act, 1992, Foreign Trade (Regulation) Rules, 1993 and the earlier Hazardous Wastes Rules concluded that despite 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. The learned Judge also noted that it is not open to the customs authorities to insist on re-export. This was to be done on....