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2018 (3) TMI 1560 - HC - CustomsRedemption of goods - violation of H&OW Rules, 2016 - import of Multi Function Devices being Digital Photocopiers and Printers - whether the imported goods would come under the definition of “waste” as per the H&OW Rules, 2016? Whether Rule 15 of the H&OW rules is attracted? - Held that: - the deeming fiction does not exclude the ordinary transactions which would come within the ambit of a “sale or purchase of goods”. Just as each sub-clause therein acts independently, so does the sub-clauses and sub-rules in Rule 15 of the H&OW Rules. An illegality simply defined, is something done in contravention of and against law. Any import which is carried out flouting the laws is an illegality, within which ambit is also taken the four instances as specified in Rule 15, by a deeming fiction. We would also notice that sub-clause (iv) also takes in any deliberate dumping of hazardous or other wastes in contravention of Basel Convention, and general principles of international and domestic law. When even violation of the general principles of law are deemed to be illegal, it cannot be said that violation of enacted laws are not illegal. What we have to see is whether there was any illegality attracting the rigor of re-export. There were defects noticed and it was reported that there should be some repair carried out to make it functional - The damages or defects noticed would not result in completely compromising their functionality according to the approved agency. The certifying agency appointed by the Department certified that the machines could be used for more than five years. We do not find any reason to find that the import is of machines which are not functional as provided under the H&OW Rules. The imported goods are “other wastes” which have a potential of becoming an e-waste after its functionality expires till which time it can be used. Redemption of goods - Held that: - The importers do not even have a case that they had applied for one. They assert that the DGFT refuses to issue such an authorisation and in such circumstance, considering the requirement of MFD's, which is even evident from the policy of the Central Government, they have been importing the same and getting release of the goods on payment of redemption fine. We cannot countenance such a contention but the fact remains that even in the teeth of the violation alleged the goods can be redeemed. As far as the violation of FTP is concerned we answer the question in favour of the importer in so far as the release of the goods since there is a redemption possible by the Adjudicating Authority under the Foreign Trade Act, who has not even been apprised of the violation. Admittedly the goods were imported without an authorisation from the DGFT, which was an essential requirement as per the FTP. In the present case, the Commissioner has thought it fit to impose 20% of the value as redemption fine, obviously without looking into the Foreign Trade Act. The Tribunal reduced it to 10%. We would not interfere with that, since the appeal to the Tribunal was only by the importer. The penalty imposed under Section 114AA has been deleted by the Tribunal, which, we find, to be proper. There cannot be any allegation of false or incorrect material, statement or declaration having been produced - The penalty under Section 112 (a) sustained by the Tribunal cannot also be interfered with. Appeal allowed in part.
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