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2007 (9) TMI 493 - MADRAS HIGH COURTRe-export of cargo - Whether there had been a final determination of the hazardous nature of the goods? - Excisability - Held that:- The petitioner is permitted to shift the 35 containers in question to any one of the Customs Bonded Warehouses in Tuticorin at his own cost within a period two weeks, under the supervision of an officer nominated by the fifth respondent. The Customs Bonded Warehouse to which the containers are shifted, shall be kept under the lock and key of an Officer nominated by the fifth respondent. If the petitioner or the second respondent is able to get 35 containers of the same size and description for hire, they shall be permitted by the fifth respondent to transfer the cargo from the containers in question to the newly hired containers, again under the supervision of the officials of the Commissionerate of Customs, as had been done at the time of re-export to Ajman, UAE. After such transfer, the petitioner may take away their empty containers. Within four weeks from this data, the fifth respondent shall have the cargo examined by the Team of Officials nominated by the Central Pollution Control Board for a final determination of the question as to whether the goods are hazardous in nature which could only be incinerated or disposed of otherwise. The cost of such examination shall be borne in the first instance by the second respondent. If after the examination of the cargo, the Central Pollution Control Board comes to a final determination that it is hazardous, then the second respondent shall have the cargo incinerated or re-exported back to Evergreen Specialities Inc, USA or to any one else in any other country, if the material is held by the Central Pollution Control Board to be either non-hazardous or fit for disposal locally (though hazardous), the fifth respondent may permit the disposal of the cargo locally, subject however to the terms and conditions imposed by the Central Pollution Control Board. The incineration or re-export or local disposal shall be as recommended by the Pollution Control Board and it shall be at the cost of the second respondent, in the first instance. The second respondent shall carry out this obligation, as per the recommendation of the Pollution Control Board, within six weeks of submission of the report, by the Pollution Control Board. Till the time the cargo is re-exported or incinerated or disposed of locally, the petitioner shall bear the lease rental for the newly hired Customs Bonded Warehouse (to which it is shifted), as well as for the containers hired by them for the transfer of the cargo. It will be open to the petitioner to include this item of expenditure in the claim made by them in the Civil Court. The obligations carried out and the expenses incurred, by the petitioner or the second respondent or the fifth respondent in carrying out the above directions, shall be without prejudice to each other’s rights agitated in the civil suit.
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