TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 34
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....e dialysis centre at the hospital of respondent no. 5, i.e., Delhi Sikh Gurudwara Management Committee, New Delhi. The Bill of Entry contained an examination order which states, inter alia, that the Customs Department shall get concerned goods certified by a Chartered Engineer that the imported goods were not hazardous waste or e-waste. Petitioner had also imported another consignment of identical haemodialysis machine vide Bill of Entry No.2536133 dated 28th January 2021. These have been cleared by the Custom Authorities and installed at the hospital of respondent no. 5. Both consignments were examined by the empanelled Chartered Engineers at the Customs, who certified that "used haemodialysis machines" were not hazardous waste or e-waste. Petitioner paid duty of Rs.6,03,736/- on or about 10th February 2021. 4. By communication dated 15th February 2021, respondent no. 3 raised an objection vide a query disallowing clearance of the said goods alleging violation of Hazardous and other Wastes (Management, Handling and Trans-Boundary Movement) Rules, 2016 ("the said Rules"). By its letter dated 22nd February 2021, petitioner replied and explained that the said Rules did not prohibit ....
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....oned provisions. 6) In view of the above, the importer, M/s Hemant Surgical Industries Limited (IEC:- 0390024945) is hereby called upon to show cause to the Additional Commissioner of Customs, Appraising Group VB, NS-V, JNCH as to why: i) The subjected goods having declared assessable value of Rs.50,14,653/- (Rupees Fifty Lakhs Fourteen Thousand Six Hundred Fifty Three only) and applicable duty of Rs.6,01,758/- (Rupees Six Lakhs One Thousand Seven Hundred Fifty Eight Only) should not be absolutely confiscated under Section 111 (d) of the Customs Act, 1962. ii) Penalty under Section 112 (a) (i) the Customs Act, 1962 should not be imposed on M/s. Hemant Surgical Industries Limited (IEC:-0390024945). 6. Petitioner replied on 12th April 2021 followed by additional reply dated 15th April 2021. Petitioner submitted as to why "used haemodialysis machines" imported are not hazardous waste or other waste and the interpretation sought to be undertaken by respondent no. 3 of the said Rules was erroneous. Respondent no. 3 thereafter, issued the impugned order dated 21st April 2021 and this petition came to be filed. 7. On 18th November 2022, this Court was pleased to pass an interi....
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...."hazardous waste" falling under the purview of Schedule VI of the said Rules. Mr. Mishra relying on the FOB value determined by the Chartered Engineer also submitted that petitioner mis-declared the value of the goods. He also relied upon the observations made by respondent no. 3 in the impugned order. 10. Mr. Shimpi adopted the submissions of Mr. Mishra. Mr. Shimpi also wanted to go into the issue of vires raised by petitioner in the petition which, during the course of submissions, Mr. Jagtiani stated that petitioner will not press the issue of vires at this point of time. Mr. Jagtiani states that if petitioner's interpretation on what is "hazardous waste" is not accepted by the Court then vires will be raised. In our view, for the following reasons, we do not have to go that far to decide this petition. 11. As noted earlier, the show cause notice proceeds on the basis that what is imported was a prohibited item and it was prohibited because it was "used critical care medical equipment" which has been prohibited under policy condition and provisions laid down for the import of "old and used medical equipment" under Rule 12 (6) and 'Basel No. B-1110' of Schedule VI of the said R....
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....d not be absolutely confiscated under Section 111 (d) of the Customs Act, 1962. ii. Penalty under Section 112 (a) (I), the Customs Act, 1962 should not be imposed on M/s Hemant Surgical Industries Limited (IEC:- 0390024945). iii. Re-determination of value as per assessment by the said Chartered Engineer Certificate Reference No. SAI-NS/HEMANT/206/20-21 dated 09.02.2021 issued by M/s Sai Siddhi Associates dated 09.02.2021 i.e. FOB Value of the subject as EUR 63,000.00 or Rs.56,79,450/- (Rupees Fifty Six Lakhs Seventy Nine Thousand Four Hundred Fifty only) @ EUR : 1.00 = Rs.90.15. 9.4 however, in view of the Chartered Engineer Certificate Reference No. SAI-NS/HEMANT/206/20-21 dated 09.02.2021 issued by M/s. Sai Siddhi Associates dated 09.02.2021 wherein FOB Value of the subject goods has been re-determined as Rs. 56,79,450/- (Rupees Fifty Six Lakhs Seventy Nine Thousand Four Hundred Fifty only), it is noticed that the imported goods have been mis-declared in respect of Value. The subject mis-declaration in value on the part of importer has resulted in increase in leviable duty amount to the tune of Rs.6,85,688/- (Rupees Six Lakhs Eighty Five Thousand Six Hundred Eighty Eight....
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....titioner. We garner support for this view from a judgment of this Court in Aroni Commercials Limited Vs. The Deputy Commissioner of Income Tax-2 (1) 2014 (362) ITR 403 (Bom), where the Court, while dealing with the provisions of Section 148 of the Income Tax Act, 1961, held that once a query is raised during the assessment proceedings and assessee has replied to it, it follows that the query was subject matter of consideration of Assessing Officer while completing the assessment and same is deemed to have been accepted. The Court also held that it is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the each and every query raised. Therefore, since there is no discussion or finding on the issue of hazardous waste in the impugned order, respondent no. 3 should be taken as having accepted petitioner's explanation. 13. In the impugned order, respondent no. 3 has strangely gone ahead and rejected the assessable value as Rs. 50,14,653/- and redetermined the value of the said goods as Rs.56,79,450/-. Based on this finding, he has also ordered confiscation of the said goods under Section 111 (d) of the Customs Act....