TaxTMI 
TaxTMI 
2024 (5) TMI 1261
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....nd appellate proceedings, as the imported goods were found to be contrary to the self-declaration tendered by the appellant for purpose of assessment and were found mixed with hazardous wastes, the goods have been held liable to confiscation and therefore confiscated. The Ld. Adjudicating Authority in proceedings initiated vide Order-in-Original No. KOL/CUS/JC/PORT/GR-II/36/2023 dated 22.03.2023 had therefore ordered confiscation of 1587.477 MTs of goods declared to be 'Waste Paper - News Gr-I (Manufacturing of Newsprint), Waste Paper-Special News D-Ink Quality (Manufacturing of Newsprint), Waste Paper-ONP 6 (Manufacturing of Paper & Paperboard), Waste Paper-News (Manufacturing of Newsprint)" valued at Rs. 3,74,89,068.00 (Rupees Three Crore Seventy Four Lakh Eighty Nine thousand and Sixty Eight only). The adjudicating authority besides confiscating the said goods also imposed a penalty of Rs. 37.00 lakh under section 112(a)(i) and 112(b)(i) of the Customs Act on the appellant besides imposing a penalty of like amount under section 114AA on the appellant. He had further ordered re-export of the said confiscated goods to the overseas supplier at importer's cost in terms of Rule 15(2)....
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....dated 06.01.2022, the goods were found as declared. Likewise, goods contained in remaining containers viz. the entire consignment were subjected to 100% examination and various kinds of contaminants of prohibited nature noticed. Individual Bills of Entry wise examination report as summarized by the appellant in their appeal papers is reproduced hereunder:- BOE NO GOODS EXAMINATION REPORT 6969754 Waste paper ONP8 8 containers of waste paper ONP8 and 2 containers - Special News De-Ink quality were found to be contaminated with the municipal and household wastes (food packets, drink canes, toothpaste tube etc.) and biomedical waste (three ply mask, tablets and drug boxes, etc.) 6969763 6981828 (Manufacturing of newsprint) 6969760 Waste paper-Special News De-Ink quality (manufacturing of Newsprint) 6969694 Waste paper coated/uncoated ground wood shavings Goods found as per declaration 7062354 Waste paper ONP 6 (Manufacturer making of paper & paper board) Goods found to be contaminated with the municipal and post-consumer domestic wastes like compressed beverage cans, food packets, plastic bottles, plastic waste etc. 6935670 Waste....
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...., Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 94,61,367 02 6969754 Dated 06.01.2022 Waste Paper-ONP 8 (Manufacturing of Newsprint) 52.25 352 USD CIF Prinnacle Fibres Inc, Canada M/s. NMCI Inspections & Survey Co. Pvt. Ltd., 2nd Floor, Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 14,18,943 03 6969763 Dated 06.01.2022 Waste Paper-ONP 8 (Manufacturing of Newsprint) 98.39 352 USD CIF Prinnacle Fibres Inc, Canada M/s. NMCI Inspections & Survey Co. Pvt. Ltd., 2nd Floor, Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 26,71,958 04 6969760 Dated 06.01.2022 Waste Paper- Special News DE-Ink Quality (Manufacturing of Newsprint) 43.227 350 USD CIF WM-Recycle America LLC, United States M/s. Nectar Inspection Services LLC, P.O. Box: 90468, DubaiUnited Arab Emirates 11,67,237 05 6981828 Dated 06.01.2022 Waste Paper- ONP 8 (Manufacturing of Newsprint) 51.48 352 USD CIF Prinnacle Fibres Inc, Canada M/s. NMCI Inspections & Survey Co. Pvt. Ltd., 2nd Floor, Plot No. 59/C, Sector-29 Vashi, Navi Mumbai-400705 13,98,032 06 7062354 Dated 13.01.2022 Waste Paper- ONP 6 (Manufacturing o....
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....aintain the record of waste in Form 3. Further, actual users are authorized by State Pollution Control Board (SPCB) to import waste paper subject to verification of documents by Customs (refer Sr. 5 of Schedule VII of HOWR, 2016). 7. He further submits that paper waste is freely importable and therefore the importer had furnished all requisites, as required under Rule 13(2) and Rule 18(2) of the HOWR, 2016 alongwith the Bills of Entry. It is therefore his case that in disregard of the aforesaid Rules, the Customs officers examined the said 65 containers under the subject 11 Bills of Entry by completely de-stuffing the same and submits that despite finding no discrepancy about the importation regarding statutory compliances with the provisions of Customs Act, Foreign Trade Policy, Handbook of Procedures, HOWR 2016 the department chose not to release the consignment. He states that mere physical examination undertaken by Customs Officer and based on eye estimation it could not be concluded that the imported goods were prohibited in nature as enumerated in Schedule-VI, of the said rules. He buttresses his case in view of the Pre-Shipment Inspection Agency (PSIA) Certificate supplie....
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....therefore supports the order under challenge passed by Commissioner (Appeals), including imposition of fine and penalty on the appellant. POLICY FOR IMPORT OF HAZARDOUS WASTES 11. The import of different types of wastes into the country is regulated by the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (HOWR for short) read with the Environment (Protection) Act, 1986. Import of Waste Papers is additionally regulated by the Revised Office Memorandum No. 131/2004- HSMD issued by Ministry of Environment, Forest & Climate Change, issued in the specific context of import of waste paper on 11th May, 2010. The said OM also prescribes limits for recyclable material in wastepaper consignments being imported from other countries, besides stating the following: The revised guidelines and specifications for non-recyclable material in wastepaper consignment as per the OM dated 11.05.2010 issued by the Ministry of Environment and Forests 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, Handling and Transboundar....
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....d 21. New Brown Kraft Envelope Cuttings None permitted 22. Mixed Ground Wood Shavings None permitted 23. Telephone Directories None permitted 24. White Blank News None permitted 25. Ground Wood Computer Printout None permitted 26. Flyleaf Shavings None permitted 27. Coated Soft White None permitted 28. Hard White Shavings None permitted 29. Hard White Envelope Cuttings None permitted 30. New Colored Envelop Cutting None permitted 31. Semi Bleached Cutting None permitted 32. Unsorted Office Paper 2 33. Sorted Office Paper 1 34. Manifold Coloured Ledger ½ 35. Sorted White Ledger ½ 36. Manifold White Ledger ½ 37. Computer Printout None permitted 38. Coated Book Stock None permitted 39. Coated Ground Wood Section None permitted 40. Printed Bleached Board Cuttings ½ 41. Misprint ted Bleached Board 1 42. Unprinted Bleached Board None permitted 43. Bleached Cup Stock None permitted 44. Printed Bleached Cup Stock None permitted 45. Unprinted Bl....
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....a and the Customs authorities have to ensure compliance of the OM in question. It is therefore evident, that the impugned goods covered vide the ten (10) Bills of Entry, as discussed above, were imported in contravention of the policy laid down for the import of paper wastes. 13. Further, in terms of HOWR 2016, paper waste is incorporated in Part D of Schedule III - B-3020 and can be imported without permission of MOEF & CC provided they are not mixed with hazardous waste and scrap of paper or paperboard of : a) unbleached paper or paperboard of corrugated paper or paperboard. b) other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass. c) paper or paperboard made mainly of mechanical pulp (for example newspapers, journals and similar printed matter) d) other, including but not limited to i. laminated paperboard ii. unsorted scrap. 14. In terms of Rule 11 of the Import and Export (Trans-boundary Movement) of Hazardous and Other Wastes Rules, the MOEF & CC being the nodal Ministry to deal with such cargo has prescribed, the provisions regulating the imports of such goods and whereby : ....
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....; The following plastic or mixed plastic waste, prepared to a specification: -Scrap plastic of non-halogenated polymers and co- polymers, including but not limited to the following: Ethylene, Styrene, Polypropylene, polyethylene terephthalate, Acrylonitrile, Butadiene, Polyacetals, Polyamides, polybutylene terephthalate, Polycarbonates, Polyethers, polyphenylene sulphides, acrylic polymers, alkanes C10-C13 (plasticiser), polyurethane (not containing CFC's), Polysiloxanes, polymethyl Methacrylate, polyvinyl alcohol, polyvinyl butyral, polyvinyl acetate ... ................................. ... ................................. Y46 Wastes collected from household/municipal waste" 16. Further, Schedule VII prescribed in terms of Rules 13 (6) (MOEF & CC (seeking to ensure compliance with reference to charter of functions) and Rule 21 (Responsibility of Authorities) of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, states the following: SCHEDULE VII [See Rule 13(6) and 21] List of authorities and corresponding duties S. No Authority Corresponding Duties 1. 2....
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.... foolhardy to contemplate its inapplicability. Moreover, as referred to in Para 9 earlier, upon a reference by CBIC the administrative ministry concerned viz. MOEF & CC had clarified that the said provision has an "overriding effect." Furthermore, even the subsequent OM issued by MOEF & CC issued on the subject vide F. No. 23/107/2022- HSMD dated 10.01.2023, prescribing revised limits of non-paper re-cydable material contained in imported waste paper consignments, in respect of "Bio-Medical Waste, Municipal Solid Waste, Post consumer domestic waste, and any other waste or contaminants not enlisted in this OM" at Sr. 50 of the Table clearly states "None Permitted", while enhancing specified limits upto 5% in respect of other grades of non-paper material contained in import consignments of waste paper. 19. We note that the HOWR, 2016 -Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 lists out Hazardous and Other wastes prohibited for import in Schedule VI, and what is contained in Part D of Schedule III on which the appellant relies, is merely a list of waste products that are permitted for import without prior permission of the nodal agency i.e. the ....
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....and whether they strictly adhere to the contours of municipal solid waste, post-consumer domestic waste and bio-medical waste, it would be required to consider the contaminants ascertained in the imported consignments, as to for their inclusion in such category of prohibited waste. Thus, as noted in Table in para 3.1, the imported waste paper consignments were found to contain the following: - Municipal and household wastes (food packets, drink canes (sic), toothpaste tube - Compressed beverage cans, - Food packets - Plastic bottles - Plastic bags - Plastic Sheets - Soft Drink Cans - Used plastic containers - Parts of Tin Containers - Bio-medical Waste (three ply mask, tablets and drug boxes) - Used face masks - Used rubber gloves amongst others. A reference to Schedule VI, of HOWR, 2016, giving description of hazardous and other wastes reads as under: 1. The Basel No. A/4020 reads "Clinical and related wastes; that is wastes arising from medical nursing, dental, veterinary, or similar practices, and wastes generated in hospitals or other f....
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....compliance of the stated provisions HOWR, 2016 and the OM's referred to earlier. Indeed the importer's submission that the OM No. 13-1/2004 HSMD dated 11.05.2010, specifically allows upto 1% of re-cyclable material in import of waste paper consignments at Sl.No.6 of Part-(vii) of the said OM is not having a bearing to the issue at hand. The said reference is certainly not made out in relation to bio-medical, municipal and other such waste contained in the shipment. 23. In so far as presence of municipal waste, post-consumer domestic waste and bio-medical waste or other contaminants contained in the imported consignments are concerned (said 10 Bills of Entry), it is undisputed that the consignments were examined in the presence of the Authorized Representative of the importer (Customs Broker M/s. CAS Agency). The said OM prescribes verification of such consignments by the Customs authorities and calls for adherence to stipulated conditions. In view thereof the action of the Customs authorities is perfectly valid, as enshrined in law and can therefore not be faulted upon. The presence of certain contaminants like organic matters, medical wastes, household/domestic wastes, municipa....
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....mined the goods, prior to such action for seizure, there is no merit in this plea of the appellant. The detailed finding in the Examination Report points out to the exact nature of contaminants found in each container and a very comprehensive list container wise of the contaminants have been drawn at the time of 100% physical examination of the cargo. Moreover, in view of the OM referred (supra) empowering the Customs authorities, the plea of the appellant that the officers were not competent to point out such nature of contaminants that too merely on a visual inspection is completely hollow and lacks substance. 26. The appellant have argued that the authorities below have failed to appreciate judicial discipline inasmuch as they did not comply with the provisions of settled law in the case of Neelkanth Pulp and Paper Boards Vs. Commissioner of Customs [2022-TIOL-341-CESTAT-AHM], we are of the view that the said proposition holds no sway in view of our discussion supra and the question of judicial discipline being an issue in the matter is not made out. 27. The appellant's contention that the Customs officers were simply required to verify the PSI Certificate tendered at the ....
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....ct, PSIC seeks to foster trust and confidence between trading partners providing the conduct of a smooth transaction. Yet, at the same time, it does not preclude any immunity in law in respect of deviant cargo, as ascertained upon verification, though duly received under cover of the said PSIC. 29. In view of the fact that the law itself empowers the Customs authorities for examination of the cargo, the following case law as relied upon by the appellant in the case of - a) M/s. G.V. Foundation Vs. Commissioner of Customs, Bengaluru - 2022 (4) TMI 1215 - CESTAT BANGALORE b) M/s. DLF Southern Homes (P) Limited Vs. CC(Imports), Chennai - 2024 (1) TMI 258 - CESTAT CHENNAI c) J. Sons Foundry Pvt.Ltd. Vs. CC(Import), Jnch, Nhava Sheva - 2018 (3) TMI 27 - CESTAT MUMBAI d) Zuari Industries Ltd. Vs. Commissioner of C.Ex. & Customs - 2007 (210) E.L.T. 648 (S.C.) are superfluously referred to and carry no substantiation for the present case at hand and the given circumstances and the legal provisions quoted earlier. 30. We are also not in agreement with the appellant's contention that the MOEF's Office Memorandum dated 11.05.2010 is inapplicable to....
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....nce to certain issues that have been raised before us in the present appeal: (i) Royal Carbon Black (P) Ltd. Vs. Chief Commissioner of Customs, Mumbai 2012 (275) E.L.T. 528 (Bom.) wherein most revered Hon'ble Justice DY Chandrachud had categorically held that movement of any hazardous waste from an area under the jurisdiction of one country to the jurisdiction of another country was indeed within the ambit of the expression "transboundary movement" and therefore it cannot be anybody's case that certain provisions of the Schedules prescribed thereunder were not applicable to the facts and circumstances of the present matter (there being no specific express exclusion made out in law). Moreover in para 15 of the said judgment the court held that upon arrival of any consignment, it is for Customs authorities to inspect and examine the consignment and follow the procedure established by law. Thus to foreclose the Customs jurisdiction to mere verification of certain documents does not infer from both the letter and spirit of law. Also in the said case with reference to HOWR, 2008 (precursor to the present rules-HOWR, 2016), it was categorically held: "The Rules have bee....
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.... courts and in view of the fact that the appellant had procured and supplied PSIA Certificates alongwith Chemical Analysis Certificates, in each of the case, the integrity of issuance of which have not been doubted, compromised or malafides attached thereto, and which were obtained from accredited persons as approved by the DGFT, we are of the view that the case does not warrant imposition of penal liabilities upon the appellant under Section 112(a) and/or 112(b) as well as 114AA of the Customs Act 1962. We therefore set aside the penal liabilities so imposed on the appellant. Under the circumstances, if at all the department had a grouse against the said certificates for not indicating the contents truthfully, it was for the department to proceed against such certified bodies and take appropriate action in law against them including de-recognition and cancellation of their certification with the department concerned. 34. Given the context and the discussions supra, we are of the view that the Revenue has made a very strong case towards confiscation of the goods. However, in the interest of justice, we are of the view that principles of natural justice would require us to consid....
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....provision of Pollution and Hazardous materials in the imported consignment, the confiscation ordered in the impugned Order-in-Appeal, would be treated as set aside. (B) If the re-examination result confirms the earlier conclusion arrived at by the Revenue, in such a case, the appellant would be required to re-export the offending prohibited goods. If they fail to re-export the same, the consequence would be as held in the above paragraph number 36. (C) The appellant would be bound by the final decision of the re-examining authority as already held. 38. The appeal is thus disposed off in the aforesaid terms. (Order pronounced in the open court on 17/04/2024.) ============= Document 1 EXHIBIT-C Certificate 100 NMCI Group JOB FILE NO.: NMCI/MTIUS/20-21/2025238 Inspection Certificate # NMCI/MTIUS /C/20-21/2568 PRE-SHIPMENT INSPECTION CERTIFICATE We hereby certify the details as below: That we have visually inspected the consignment and certify the following: DATED: 06.12.2021 Page No. 1 of 2 a) The imported consignment is actually waste /scrap paper as per internationally acceptable parameters for such materials h) The co....
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.... contractual obligations by any parties. Official Seal pection Co. MC CACA Signature: Designation: Manager Address (Office): NMCLA *India 9173 Name of PSIA as Per appendix 2G: Address: 236 Emston Road, Parlin, NJ 08859 NMCI Inspections & Survey Co. Pvt Ltd, 2nd Floor, Plot No. 59/C, Sector 29, Vashi, Navi Mumbai- 400705, India E-mail: [email protected] Disdain The Impetionary has becs conducted to the best of our ownlodge and belief at the dime of the especion with my projede. The corticals led her sinabure is based on our backing the te only, and the ring best limited to seller , yes, cups and drivers from their actual obligation and rumbling all exceed & in pursue a live of the lee paid for the inspection and place of or dames with besided only if pure is pre All clais belased. 10, are our of or hard on the inspection or this site ISRIO ANAR TIC Gafta FOSFA ISRI INTERNATIONAL ISO 9001:2015 Certified Quality System and ISO/IEC 17020 Accredited Inspections are carried out as per Principals Instructions and conformity with the General Conditions of TIC No. N 6271 Document 2 NECTAR n....