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2023 (9) TMI 1197 - AT - CustomsSeeking provisional release of seized goods - non-paper materials in waste paper consignments being imported from other countries - review of the policy by issuance of new Office Memorandum (O.M.) - submission of the Appellant that since the new OM has been issued in the midst of the proceedings, application for provisional release and adjudication of show cause notice need to be adjudicated under new OM dated 10-01-2023 - HELD THAT:- The Learned Commissioner (Appeals) dismissed the appeal without dealing with the contentions raised by the Appellant. The judgement of Hon’ble Gujarat High court in the case of SATGURU POLYFAB PVT. LTD. VERSUS UNION OF INDIA [2021 (3) TMI 1376 - GUJARAT HIGH COURT] covers the field and in view of the proposition of law set out in the two constitution bench judgments discussed in prepares viz., COMMISSIONER OF INCOME TAX (CENTRAL) -I, NEW DELHI VERSUS VATIKA TOWNSHIP PRIVATE LIMITED [2014 (9) TMI 576 - SUPREME COURT] and KOLHAPUR CANESUGAR WORKS LTD. VERSUS UNION OF INDIA [2000 (2) TMI 823 - SUPREME COURT], the issue is no longer res integra that new OM would be applicable for adjudicating the imported goods which provides for examination and release of the goods container wise, within the overall limits, specified in the said OM in percentage terms, of non paper materials/contaminants and other conditions set out in the said OM dated 10.01.2023. The Department is directed to examine the goods as per terms of the revised OM (F. No. 23/107/2022HSMD dated 10.01.2023) containerwise and to be so done in presence of the importer. The containers of paper waste where the goods are found in conformity with OM dated 10-01-2023, may be provisionally released on Bond/Undertaking. Where paper waste is found to be contaminated in a container, it would be dealt with under the new OM dated 10-01-2023 and such goods would be either re- exported or allowed to be disposed of in terms of the said OM dated 10- 01-2023. The adjudicating authority shall adjudicate the show cause notice after the exercise of provisional release is undertaken, which would be subject to final adjudication. Since new OM would be the governing law which provides for re- export and quantified penalty for local disposal, the Department shall be free to take legal undertaking from the importer to comply with conditions of disposal of the goods under new OM. Needless to mention the Department would be at liberty to supervise such disposal of the goods locally/re export of contaminated container if so found. Appeal allowed.
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