TMI Blog2009 (4) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed. The order of remand is set aside. Consequently the order dated 30-4-2008 must be set aside. - C.M.A. No. 483 of 2009 - - - Dated:- 28-4-2009 - Prabha Sridevan and T.S. Sivagnanam, JJ. Mrs. P. Bhuvaneswari, SCGSC, for the Appellant. Shri S. Murugappan, for the Respondent. JUDGMENT The substantial question of law raised by the Department in this civil miscellaneous appeal is : Whether the Tribunal is right in holding that confiscation of Druid under Section 111(d) of the Customs Act, 1962 is is not sustainable on the ground that as per para 4.2.7 of the Foreign Trade Policy goods imported for jobbing in terms of a Notification, do not require a licence, certificate or permission? 2. The facts are as follows : The respondents imported a consignment which was described as Lead covered Copper cable Scrap Relay purportedly for the purpose of segregating the and re-exporting it in terms of the job work Notification No. 32/97. They have registered themselves and given a bond to Central Excise Authorities for this purpose. The goods were supplied free of charge by the supplier. It was stated that the segregated copper as well as other waste mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time. 3. The Appellate Authority then held that the issue was not a simple one, since even at the show cause notice stage it was pointed out that the appellant is not registered with the Ministry of Environment and Forests, Government of India. Therefore, the Commissioner (Appeal) took into account the perception and awareness of environmental pollutants being imported into the country. It is seen that the country of origin of the goods is Australia but the export product is supposedly for export to the U.S.A. The appellant has contended that the goods as well as the waste products would be exported back abroad. It is not known where the waste material i.e., Plastic, PVC Coir, residue etc. would be exported (as averred by them), whether to U.S.A. or Australia. There is serious doubt whether those countries would even permit import of waste material from India. Thus the bona fides of the appellants claim are also suspect. A lack of registration as required under the Import Licensing notes to Chapter 74 would thus render the importer a violation of the import conditions. Thereafter, the Commissioner (Appeals) held that the value declared is a tentative value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the High Court of Madras the final order in C/882/2006. But, stay was not granted. 6. When the matter was taken up, the respondent s counsel raised a preliminary objection and submitted that nothing survives in this matter, since the order of remand had been given effect to. In addition to oral arguments, the written submissions have also been filed by the respondent. 7. According to the learned Senior Central Government Standing Counsel, the subject goods could be imported only if the importer is registered with the Ministry of Environment and Forest. Further she also submitted that there was a clear case of misdeclaration. What was declared to be Lead Scrap was found to include PVC/plastic insulated copper cable wires. The learned counsel referred to the report of the NML in this regard. It was also submitted that because there was a delay in representation and the delay in filing the appeal, the interim orders could not be obtained to stay the order of remand. The learned counsel submitted that if the question of law raised is accepted then all the proceedings that have taken place in the interregnum would be non-est in law. 8. The learned counsel appearing for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wrong and set it aside, then the proceedings pursuant to the order of remand will have no legal existence, since they are only consequential to the order of remand. We refer to the following two cases : (i) in 1993 supp (4) SCC 432 (Kapoor Chand v. Ganesh Dutt) the judgment and decree of the Rajasthan High Court was set aside by the Supreme Court in S.L.P. No. 12981 of 1987. while the Special Leave Petition was pending the party aggrieved by the aforesaid judgment and decree filed a review petition before the Rajasthan High Court. This was dismissed on the ground that the review petition was not maintainable. Against that S.L.P. No. 6544 of 1991 was filed. The Supreme Court dismissed the second petition as infructuous since the special leave petition against the original judgment of the Rajasthan High Court was set aside i.e., in S.L.P. No. 12981 of 1987. While doing so they have observed that the question regarding merger of judgment under review had arisen only after this Court had considered the Special Leave Petition on merits and passed the order. Therefore, it is clear that upon the reversal of the original order the intermediate proceedings that took place pending the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entirely agree with his reasoning and his conclusion. And they held that the view taken by Mack J. in Venkatrama Aiyar v. Unnamalai Ammal , (1948-2 MLJ 404), that the appeal against the order of remand was incompetent if the suit is disposed of after remand is wrong. (iii) In Union of India and Others v. Ram Kumar Thakur [(2009) 1 SCC 122)], the order of reinstatement had been implemented pending appeal to the higher forum so as to avoid contempt proceedings. When the appeal came up for hearing it was contended that in view of the reinstatement the appeal had become infructuous. The Supreme Court disagreed and held that, - Merely because the impugned order before the High Court was implemented to avoid possible contempt proceedings that did not take away the right of the appellants to prefer an appeal and question correctness of the impugned order. ... 5. It has been noted by this Court that if even in cases where interim relief is not granted in favour of the applicant and the order is implemented that does not furnish a ground for not entertaining the appeal to be heard on merits. (See Nagar Mahapalika v. State of U.P. (2006 5 SCC 127). Similar view was also taken in N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed orders and when the Customs officials have specifically directed them to re-export the cargo to the country of origin that is U.S.A., they should have shunted it back to the sender, instead of trying to send it to another country, where, according to him, the true purchaser is available, that too without the knowledge of the original sender M/s. Evergreen Specialities, USA. 40. It is really painful rather pathetic to note that the foreign developed countries are searching for dumping yards to dumped their municipal waste and are dumping their municipal waste somehow or other in the waters or soil of developing countries and thus are trying to enjoy a pollution free surroundings in their countries. In the case on hand, the appellant, instead of trying to secure the pollution free environment in our country, by scrupulously following the instructions given to them by the customs officials and the Pollution Control Board are raising legally unsustainable grounds, only to escape the legal liability of paying the amounts to the first respondent, which would not be allowed to happen. 12. We think that the warning could not have been better phrased. In 2005 (10) SCC 510 (Resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6 (RE-2001) dated, 31-3-2001 issued by the Directorate General of Foreign Trade and other similar notifications issued based on the advice of Ministry of Environment and Forests, prior import permission from that Ministry shall not be required. Rule 9 deals with procedure for registration and renewal of registration of recyclers and re-refiners. .... Sub-rule (1) requires every person desirous of recycling or re-refining non-ferrous metal wastes as specified in Schedule 4 or used oil or waste oil to register himself with the Central Pollution Control Board. There are two provisos to sub-rule (1). The said provisos provide the cases where registration is not required. Apparently, it seems difficult to comprehend the reason for inserting sub-rule (2) in Rule 9 which provides for registration and renewal and sub-rule (12) providing for dispensing with prior import permission. Prima facie we hope that the intention is not to permit banned items or hazardous waste items under the guise of sub-rule (12) of Rule 19. It can have the effect of setting at naught Rule 13. This aspect too requires to be examined by the Ministry of Environment and Forests and affidavit filed within 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; 19. The effect of interpretation of the words prohibited goods was considered in Om Prakash Bhatia v. Commissioner of Customs - (2003) 6 SCC 161 = 2003 (155) E.L.T. 423 (S.C.) and in Paragraph No. 10 of the said judgment the Supreme court held as follows : 10. From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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