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2018 (10) TMI 669 - AT - Customs100% EOU - packing material used is in the prohibited category - bio-degradable in nature or not? - Rule 5(d) and 5(g) of the Plastic Waste (Management And Handing) Rules, 2011 - whether the appellant manufacturer has violated Rule 5(d) and 5(g) of the Plastic Waste (Management and Handling) Rules, 2011, in the course of exporting the goods namely RMD Gutkha (4 gms)? Held that:- The Customs authorities drawn a sample sent for test to Customs laboratory, Vadodara, wherein, the report reveals that the packaging material is composed of paper, Aluminium and Plastic, however, the said report does not clarify whether the nature of plastic is bio-degradable and non Poly Lactic Acid and otherwise. Therefore, the said report was not clear. It was further, clarified that the packaging material is made of plastic which is of Poly Lactic Acid. Despite of the report, which shows that the plastic used in packaging material is bio-degradable, the adjudicating authority held that the appellant have violated the Rule 5(D) And 5(G) Plastic Waste (Management And Handing) Rules, 2011. From report of Customs laboratory, Kandla, it is seen that the plastic layer in the packaging material is made of Poly Lactic Acid / Co-polymer Lactic Acid. From all the above report of the Chemical Examiner it is clear that the plastic based on Ploy Lactic Acid is made of starch which is clearly bio-degradable. Therefore, as per the direction of the Commissioner (Appeals) in the first appellate order the adjudicating authority had no option except to allow the appeal, however, he in complete defiance of the Commissioner Appeal’s direction, once again visited on the original issue and given the finding that irrespective of any nature of plastic there is a violation of Rules, 5(d) and 5(g) of Plastic Waste (Management And Handing) Rules, 2011, which is absolutely incorrect and illegal. Hon’ble Supreme Court in the case of R.M. DHARIWAL 100% EOU VERSUS UNION OF INDIA [2016 (11) TMI 502 - SUPREME COURT] has taken up clear view that if the goods are manufactured in 100% EOU and the said goods is exported and not cleared in the domestic market, the operation of Plastic Waste (Management and Handing) Rules, 2011 is exempted. The Hon’ble Supreme Court in this judgment laid down a principle that in case of export of goods the Plastic Waste (Management and Handing) Rules, 2011, is not applicable. As per the judgments of Supreme Court even if the packaging material contains non Bio-degradable plastic but the goods is exported, the Plastic Waste (Management and Handing) Rules, 2011 shall not apply - there is no case of violation of Plastic Waste (Management and Handling) Rules, 2011 against the appellant. Appeal allowed - decided in favor of appellant.
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