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2021 (11) TMI 127 - AT - CustomsConfiscation of imported goods - lubricant oil open gear - hazardous waste liable to confiscation or not - imported goods found as hazardous waste shall be re- exported by the importer at his own expense in view of the provisions of Rule 17 of Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 or not - levy of redemption fine and penalty - HELD THAT:- Entire dispute revolves around the test reports dated 09.02.2015 in respect of the three samples drawn by the department and sent to CRCL for testing. Undisputedly as has been admitted by the Chemical Examiner CRCL during cross examination, CRCL was not having the capability to test the hazardous waste, and hence the test was conducted by one private laboratory, M/s Avon Food Labs Pvt Ltd. For justifying the same Commissioner (Appeal) has referred to the CBEC Circular No 09/2009-Customs - From perusal of the test reports, it is quite evident that, the report do not disclose the name of laboratory where the samples were tested and also the report of the said laboratory has not been disclosed in the opinion furnished by the Chemical Examiner, CRCL. At this point it is relevant to look into the questions that were put to Shri A K Maurya Chemical Examiner during the cross examination. We do not find ourselves in agreement with the order of the adjudicating authority, whereby he confiscates the goods and imposes the redemption fine and directs the goods to be re-exported. Redemption of the goods against the redemption fine is the option given to the importer/ exporter and it is his choice whether to avail of that option. If the goods are to be re- exported as per Rule 17 (2) of Hazardous Waste Rules, 2008, then such an action could not have been justified, as importer can very well chose not to pay the redemption fine. The approach of the adjudicating authority cannot be upheld in any manner. Impugned order of Commissioner (Appeal) is totally silent on this vital aspect of permitting the goods to be re- exported against payment of redemption fine. Since the issue involves the hazardous good we would not be in position to permit the clearance of the goods without the active consideration of the same by the SPCBs/ PCCs who are the designated authority in terms of the rule 17 (2) of the Hazardous Waste Rules, 2008 and also as per the Board Circular of 2009 - the revenue authorities should make a proper and justifiable opinion in the matter as to the nature of the goods after retesting of the same and in consultation with the concerned SPCB. On the basis of the said opinion, the appellant should be either permitted to clear the goods in DTA or re-export the same as per Rule 17 (2) of the Hazardous Waste Rules, 2008. In case importer do not intend to opt for the said options the said goods, needs to be dealt in the manner as prescribed by the Hazardous Waste Rules, 2008 for disposal. The matter is remanded back to the original authority to get the samples of the impugned goods re-tested by CRCL or any appropriately notified laboratory to determine the hazardous nature of the goods - appeal allowed by way of remand.
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