TaxTMI 
TaxTMI 
2020 (12) TMI 647
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....ment that the appellant has undervalued the goods and has violated the provisions of Hazardous and other wastes (Management & Transboundry Movement) Rules, 2016, E-Waste (Management) Rules, 2016 and the Bureau of Indian Standards Act, 1986 read with Electronics & IT Goods (Requirement of Compulsory Registration) Order 2012 as well as provisions of FTP 2015-20 applicable to the said goods. On the allegation of these contraventions, a show-cause notice was issued. Appellant filed detailed reply to the show-cause notice submitting that they had not violated the provisions of Hazardous and other wastes Rules, 2016 as well as Compulsory Registration Order, 2012. Appellant fairly conceded that the impugned goods are restricted goods and they did not possess the authorization from the DGFT. After following the due process, the adjudicating authority vide Order-in-Original dated 25/03/2019 determined the value of the impugned goods as Rs. 22,71,815/- (Rupees Twenty Two lakhs Seventy One Thousand Eight Hundred and Fifteen only) and ordered for absolute confiscation of the impugned goods under Section 111(d) and 111(o) of the Customs Act, 1962 for contravening the provisions of Hazardous and....
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....radesh and Telangana in the order cited by the appellant has examined the same issue and has concluded that the item MFD was not notified under the CRO and as such, it is not open to the Customs authorities to blindly apply the directives of Department of Electronics and Information Technology through the letter dt. 16/12/2016 to the appellant's goods. In view of the above, we are of the view that the appellants cannot be held to have violated the provisions of the Compulsory Registration Order." 4.1. He also submitted that in another decision of the Tribunal in the case of M/s. S.R Enterprises, this Tribunal vide Final Order No. 21308 - 21309/2019 dated 20/12/2019 has also considered this issue and has ordered as under: "11. It is clear from the exclusive categorization of the impugned goods as 'multifunctional devices' that the prescription of standards to be conformed by each of the machines, when intended to function separately, that make up this composite machine are not applicable to the impugned goods; hence the need for certification under Bureau of Indian Standards Act is not mandated." 4.2. He further submitted that in para 12 of the impugned order the a....
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....ns for import of 'hazardous waste', would not apply to the impugned goods." 4.4. As far as absolute confiscation of the goods are concerned, the learned counsel submitted that this issue has also been considered by the Tribunal in various decisions and it has been consistently held that the import of MFDs are not liable to absolute confiscation and the Tribunal in various decisions has ordered for release of the goods on payment of redemption fine and penalty in addition to the normal duty. 5. On the other hand, the learned AR also submitted the written submissions and defended the impugned order on the ground of violation of Customs Act and Foreign Trade Policy, 2015-20 and also violation of Hazardous and other Waste (Management and Transboundry Movement) Rules, 2016 and Bureau of Indian Standards. In support of his submission, he relied upon the following decisions: a. CC, Chennai-II Vs. City Office Equipment - 2019 (367) E.L.T. 920 (Mad.) b. L.N.S. Impex Vs. Principal Commissioner of Customs, Hyderabad - 2019 (367) E.L.T. 700 (Telangana) 6. After considering the submissions of both the parties and perusal of the material on record, we find....
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....rinting A3 size papers and they are capable of being put to productive use and the machines were not in a damaged condition to such an extent which will compromise their functionality. The residual life of these machines has been certified. In the face of these technical opinions and facts as recorded, we find that the imported items cannot be considered as waste. 10. Examining the conditionalities as mentioned in Hazardous Waste Rules 2016, we note the Schedule VIII (entry 4(j)) stipulates 5 documents to be produced by the importer. The first one is regarding country of origin which in the present case, the importer produced the certificate from Canadian authorities. We find force in the objection raised by the Revenue regarding the non-applicability of such certificate to the present consignments. The consignments have originated from China / Korea / Japan as admitted by the importer and were initially being supplied by Canadian 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 presen....
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....r the importation of goods. 14. Regarding applicability of Rule 13 of 2016 Rules, we note that the same deals with hazardous and other waste. In terms of definition of "waste' in the rules, we find that used machines with residual life of 5 or 7 years cannot, per se, be considered as "waste'. 15. In view of the above detailed analysis, we find that the importation of the impugned goods is in violation of Import Policy of the relevant time and also of some of the conditions of Hazardous Waste Rules 2016. The violation of Hazardous Waste Rules is with reference to country of origin certificate. Other conditions mentioned therein have substantially been fulfilled as discussed above." This decision of the Tribunal has been upheld by the Apex Court reported in 2019 (365) E.L.T. 465 (S.C). Further, we find that in the case of Commissioner of Customs, Ludhiana Vs. B.E. Office Automation Products Pvt. Ltd. 2012 (371) E.L.T. 592, the Division Bench of this Tribunal has also relied upon the decision of the Atul Automations and has held that there is no violation of the Bureau of Indian Standard and Hazardous Waste (Management) Rules as well as Foreign Trade Po....