TaxTMI 
TaxTMI 
2024 (5) TMI 1261
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....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) of the Hazardous & Other Wastes (Manageme....
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....ared. 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 Paper News grade 1(Manufacturing of Newsprint) Traces of municipal waste including....
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....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 of Paper & Paperboard) 172.62 245 USD CIF Visy Recycling, Level 11,2 Southbank Boulevard, Australia M/s. Sandeep Garg & Co, 584, Sector-15, PartI, Gurugram, Haryana- 122001 31,88,809 07 7076637 Dated 14.01.202....
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.... 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 supplied, after inspection of the imported goods at the site of collection, in the country of export, categorically stating that the imported consignments did not contain municipal solid waste/domestic waste or medical wastes. 8. The appellant is therefore aggrieved with the seizure and ultimate confiscation of ....
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....ry 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 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 have to ensure that all recyclable materials are actually recycled by them. Ther....
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....one 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 Bleached Plate Stock None permitted 46. Printed Bleached Plate Stock Kinds None permitted 47. Specialty Grades (White waxed cup cuttings, Plastic Coated Cups. Printed waxed cup cuttings, polycoated bleached Kraft-unprinted, polycoated bleached Kraft-printed, polycoated milk cartoon stock, poly-coated diaper stock, poly-coated box board cuttings, waxed boxboard cuttings, printed and/or unprinted bleached sulphate containing foil, Waxed corrugated cuttings. We strength corrugated cuttings, Asphalt laminated corrugated cuttings, Beer carton scrap, Contaminated bag scrap, Insoluble glued free sheet paper and/or board, White wet streng....
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....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 : "Rule 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 (iii) it does not conform to the shipping details provided in the movement documents; or (iv) it results in deliberate disposal (i.e., dumping) of hazardous or other waste in contravention of the Basel Convention and of general principles of international or domestic law. (2) In case of illegal import of the hazardous or other waste, the importer shall re-export the waste in ques....
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....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. 3. 4. 5. 6. Port authority under Indian Ports Act, 1908 (15 of 1908) and Customs Authority under the Customs Act, 1962 (52 of 1962) (i) Verify the documents (ii) Inform the Ministry of Environment, Forests and Climate Change of any illegal traffic (iii) Analyse wastes permitted for imports and exports, wherever required. (iv) Train officials on the provisions of these rules and in the analysis of hazardous and other wastes (v) Take action against exporter or importer for violations under the Indian Ports Act, 1908 or Customs Act, 1962 17. The appellant has extensively relied upon the decision of this Tribunal in the case of Neelkanth Pulp & Paper Boards Vs. Commissioner of Customs 2022 (1) TMI - 1185 CESTAT - Ahmedabad, wherein it was held that a technical opinion rendered by ....
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....ovement) 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 MOEF & CC. Even in this list there is a caveat "provided they are not mixed with hazardous waste." The relevant extract of the list is extracted below: Part D List of other wastes applicable for import and export without permission from Ministry of Environment, Forest and Climate Change [Annex IX of the Basel Convention*] Basel No. Description of wastes (1) (2) B3 Wastes containing principally organic constituents, which may contain metals and inorganic materials B3020 Paper, paperboard and paper product wastes ** The following materials, provided they are not mixed with hazardous wastes: Waste and scrap of paper or paperboard of: - unbleached paper or paperboard or of corrugated paper or paperboard - other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass - paper or paperboard made mainly of mechanical pulp (for example newspapers, jour....
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....rising from medical nursing, dental, veterinary, or similar practices, and wastes generated in hospitals or other facilities during the investigation or treatment of patients, or research projects," 2. The Basel No. B/3010 reads "Solid plastic waste. 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 (plasticizer), polyurethane (not containing CFC's), Polysiloxanes, polymethyl methacrylate, polyvinyl alcohol, polyvinyl butyral, Polyvinyl acetate," and 3. Basel No. Y 46 reads "Wastes collected from household/ municipal waste." A conjoint reading of the contaminants detected and noticed in the shipment vis-à-vis as indicated under Basel No. S A4020, B3010 and Y46 clearly indicate the said contaminants to be of the category as are prohibited for import under the HOWR, 2016. In view of this, the fact that the imported ....
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.... organic matters, medical wastes, household/domestic wastes, municipal solid wastes, like food packets, drink cans, toothpaste tube, three ply masks, tablet and drug boxes, compressed beverages cans, food packets, plastic bottles, plastic wastes, plastic sheets, plastic bags, plastic jars, soft drink cans, used plastic bottles, used plastic containers, parts of tin container, used face masks, used rubber hand gloves etc. has not been disputed. 24. As per Import Policy pertaining to import of waste paper, according to the HOWR, 2016, paper waste comes under 'Part D' of Schedule III, Basel No.B3020 and can be imported into India without approval from MoEF & CC, provided they are not mixed with hazardous wastes. Now, the presence of hazardous wastes prohibited to import viz. Basel No. A/4020, Basel No. B/3010, Basel No. Y 46 i.e., biomedical waste, post-consumer domestic waste, municipal waste in these consignments renders the imported goods within the scope of "illegal traffic". Thus Rule 15 of the HWM Rules provides that:- "Rule 15. Illegal traffic. - (1) The export and import of hazardous or other waste from and into India, respectively shall be deemed illegal, if, - ....
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....dered at the time of import further fails to satisfy us, in the least, for what has been discussed earlier, and as the HSM Division of MOEF & CC vide OM dated 28.03.2022 issued from F.No.23/53/2020-HSM advised that "point (iv) of the OM of 2010, under reference is an overriding prohibition and no amount of Municipal waste, Post-consumer domestic waste or Biomedical waste or any other contaminants is allowed with the consignment of waste paper. In case such contaminants are found, then the consignment will have to be sent back to the exporting country. Such contaminants cannot be segregated and disposed of in India and the Customs authorities have to ensure compliance of the OM in question." This clarification is quite categorical and leaves no room for intendment. 28. As for the appellant's submissions regarding supply of the Pre-Shipment Inspection Certificate (PSIC) at the time of import, pointing out that the same had been obtained from accredited and recognized agency specified by the DGFT and therefore the subject matter would call for due consideration in support of their stance, debarring the Customs Officers of any interdiction of the cargo, it may be stated that submissio....
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....circumstances of the case in view of the law as laid down by the apex court in the following cases: a) Ambica Quarry Works Vs. State of Gujarat & Others - 1987 (1) Supreme Court Cases 213 b) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. And Others - 2003 (2) Supreme Court Cases 111 c) Bharat Petroleum Corporation Ltd. & Another Vs. NR Vairamani & Another - AIR 2004 (SC) 4778 (S.C.) d) ITC Ltd. Vs. Norasia Container Lines Ltd. - 2020 (373) E.L.T. 289 (S.C.) e) ITC Ltd. Vs. Norasia Container Lines Ltd. - 2009 (247) E.L.T. 60 (Mad.) f) Commissioner of Customs Vs. Magus Metals P. Ltd. - 2017 (355) E.L.T. 323 (S.C.) We respectfully submit that none of the aforesaid pronouncements cater to the issue at hand and are therefore referred to out of context. 31. The Tribunal in the case of Krishna Tissue Pvt. Ltd. Vs. Commissioner of Customs (Port), Kolkata vide Final Order No.MO/75589/2023 & FO/76724/2023 dated 11.09.2023 has held as under:- "13. In view of our discussions above, the Department in association with SPCB is directed to examine the goods as per terms of the revised OM (F.No.23/107/2022SHMD dated 10.01.2023) containerwise and to be so done in presence of t....
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....wastes does not result in a deleterious effect on public health and environment. The provisions contained in the Rules must be scrupulously enforced." (Emphasis Supplied) In view of the aforesaid, certain propositions as discussed at length in preceding paras are no more but plainly fallacious. (ii) In the case of Norasia Container Lines Ltd. Vs. Union of India - 2008 (222) ELT 323 (Mad.) a case specific to import of waste paper contaminated with municipal waste, the Hon'ble Madras High Court, wherein certain respondents sought to withdrawn the import bills, after it was found to be containing hazardous waste, had held that the same would not tantamount to discharging them of their obligations under the statute. Moreover, on the aspect of disposal of such cargo in terms of the erstwhile rule 15(3) it was held in no uncertain terms that the absence of a statutory obligation under one of the provisions, cannot result in obligation imposed by the other getting wiped out. The court in the case was concerned with the provisions of the Customs Act 1962 and that of the Hazardous Wastes (Management and Handling) Rules 1989. It categorically held that Rule 15(3) of the said rules ....
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.... fact that the State Pollution Control Board Authorities (SPCB) are duly empowered under Schedule VII (Sr. 4) of the HOWR, 2016 for: (i) Inventorisation of hazardous and other wastes and (ii) Monitoring of compliance of various provisions, and are also the specified competent authority to take action against violation of the HOWR, 2016, provisions. We feel that the subject cargo can be jointly got re-examined afresh by the department in co-ordination with SPCB before initiating any further action in the matter. However the said option is completely at the discretion of the appellant who will be required to file a written undertaking with the jurisdictional Commissioner to the effect of consent thereto and to abide by the consequence of such re-examination. The appellant will be required to bear the cost incurred for the re-examination of the goods. Such option if any, will be required to be exercised by the appellant within four weeks of the pronouncement of the order. 35. In the event of the appellant choosing to re-export the goods redemption fine as adjudged by the original authority shall be payable, in lieu of confiscation under Section 125 of Customs Act. 36. In case, ....