TaxTMI 
TaxTMI 
2023 (9) TMI 1197
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued a revised Office Memorandum No. 13-1/2004 HSMD dated 11th May 2010. This OM was issued in supersession of the earlier OM of even number dated 10.02.2006 and prescribed revised guidelines and specifications for non-recyclable material contained in waste paper consignments. 2.1 For sake of ready reference and ease of comprehension the aforesaid OM is reproduced hereunder:- OFFICE MEMORANDUM The Ministry has reviewed the prescribed limits for non-paper recyclable material in waste paper consignments being imported from other countries. In suppression of the O.M. of even number dated 10.02.2008, the revised guidelines and specifications for non-recyclable material in waste paper consignment are as follows: i. Import and export of paper, paperboard and paper product wastes shall be regulated in accordance with the provisions laid down under the Hazardous Wastes (Management, Handing and Transboundary Movement) Rules, 2008 as amended. ii. Import of paper wastes shall be only for recovery manufacture at the paper manufacturing unit (henceforth called as unit) and the imported material shall not be sold further. iii. The importers would h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cuttings, Plastic coated cups, polycoated bleached kraft-unprinted, polycoated bleached Kraft-printed, polycoated milk carton stock, polycoated diaper stock, polycoated boxboard cuttings, waxed boxboard cuttings, printed and /or unprinted bleached sulphate containing foil, Waxed corrugated cuttings, Wet strength corrugated cuttings, Asphalt laminated corrugated cuttings, Beer carton scrap, Contaminated bag scrap, insoluble glued free sheet paper and /or board white wet strength scrap, Brown wet strength scrap, Printed and /or colored wet strength scrap, File Stock, New Computer printout, Ruled white, Fly leaf shavings containing hot melt None permitted glue, Carbon mix, Books with covers, Unsorted tabulating cards, colored tabulating cards, Carbonless treated ledger, Plastic windowed envelops, Textile boxes, Printed TMP, Unprinted TMP, manila tabulating cards, Sorted colored ledgers 2. The content of paper wastes must be verified by the Customs authorities in respect of each consignment imported into the country. 3. Adherence to stipulated conditions would be verified by the Customs Authorities, the State Pol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n case any contaminant is found in a container, that particular container is to be re-exported or suitably dealt with in terms of paragraph VII of OM dated 10-01-2023 and not the whole cargo . The OM dated 11th May 2010 did not provide for container wise examination. The OM dated 10th January 2023 is set out herein below:- OFFICE MEMORANDUM The Ministry has reviewed the prescribed limits for non-paper materials in waste paper consignments being imported from other countries. In superession of the OM issued vide No. 13-1/2004-HSM dated 11.05.2010, the revised guideline and specifications for non- paper materials in waste paper consignments are as follows; i. Import and export of paper, paperboard and paper product wastes shall be regulated in accordance with the provisions laid down under the Hazardous and other Wastes (Management and transboundary Movement) Rules, 2016 as amended from time to time. ii. Import of paper wastes shall be only for recovery/manufacture at the paper-manufacturing unit and the imported material shall not be sold further. iii. The importers would have to ensure that all recyclable materials are actual....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd of plastic, wood, Sand, Metal Textile and Glass 50. Bio Medical Waste, Municipal Solid Waste, Post Consumer domestic waste and any other waste or contaminants not enlisted in this OM. Not permitted v. The imports should be accompanied by a certificate of origin naming the foreign facility from where the material originated, whether it is a result of single strea or dual stream waste collection, and a credible pre-shipment inspection report based on a bale-break report. vi. The importer should obtain a quarterly certificate from the SPCB, that the non-paper waste included in the previous imports made in quarter preceding the immediately preceding quarter, has been scientifically disposed of an especially, the plastic has been sent to waste to energy plants or cement kilns. This certificate should be a mandatory document to be submitted to the customs authority at the time of clearance of the import consignment. vii. If any contaminants more than as specified above are found in any imported container, the same shall be sent back to the exporting country and the importer shall bear the cost thereof. However, the importer will have an op....
X X X X Extracts X X X X
X X X X Extracts X X X X
....without a saving clause. and Section 159(A) of the Customs Act 1962 would also not apply as OM dated 11th May 2010 of MoEF was not issued under Customs Act 1962. They thus contend that the said pending proceedings would automatically lapse because of no saving Clause contained therein. The Appellant also cited the judgment of the constitution bench of Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Vatika Township Private Limited reported in 2015 (1) SCC to canvass the point that beneficial notification need to be given retrospective effect. The Appellant relied upon Para 30 and 31 of the judgment where in the court has held as under: 30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators' object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioners to use the raw materials which were imported by the petitioners and which were the subject matter of the petitions and such materials being kept separate unutilised by the petitioners as per the directions of this Court. The undertaking given by the petitioners before this Court is also discharged in view of the fact that now the petitioners can use such raw materials in SEZ units after the notification dated 27-1-2021." 9. The Appellant also relied upon the judgement of the Division Bench of Hon'ble Calcutta High Court in the case of PR. Commissioner of Central Excise vs. Himadri Speciality Chemical Ltd. reported in 2022 GSTL 264 Cal where the Court held:- "11. As could be seen from the above clarification, the decision in Cadila Health Care was also taken note of by the department and the position stood clarified that sales promotion would include services by way of sale of goods on commission basis. As pointed out by the Hon'ble Supreme Court in Commissioner of Income Tax v. Vatika Township Private Limited [(2015) 1 SCC 1] that if a legislation confers the benefit on some persons but without inflicting the corresponding detriment on some other pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an interlocutory exercise and does not finally adjudicate on any liability; (iii) The exercise of power under section 110A of the Customs Act to release imported goods on a provisional basis is essentially and fundamentally discretionary in nature; (iv) Section 110A of the Customs Act contemplates release of any goods. Thus, both prohibited goods and non-prohibited goods can be released; (v) If the goods are not per se prohibited, question of going into prohibited goods as per Om Prakash Bhatia case does not arise at the stage of provisional release; (vi) A Circular which absolutely proscribed provisional release of prohibited goods or where any provisions are contravened, is void; (vii) The Tribunal is competent to order provisional release and fix terms and there is no need for remand; (viii) While passing an order for provisional release, there is no adjudication of competing rights and liabilities; (ix) High Courts would interfere with an order passed by the Tribunal for provisional release of the goods only on grounds of perversity; (x) Allowing provisional release of the seized goods does not interfere wi....