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TMI Blog2010 (7) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... azardous waste oil as referred to in Serial No. 10 of the Schedule to the Hazardous Waste (Management & Handling) Rules, 1989 and the same have been imported without NOC certificate from the Pollution Control Board as used waste lubricating oil. The department drew samples and forwarded them to Chemical Examiner CRCL in Delhi and also to Punjab Test House, Ludhiana seeking to ascertain as to whether, "(1) It is the "waste oil & oil emulsion" as specified against waste category No. 10 to schedule to the Hazardous waste (Management & Handling) Rules. (2) It is hazardous or toxic waste as envisaged under the said rules. (3) The sample contains :- (i) Poly chlorinated biphenyles (PCB) (ii) Poly chlorinated terphenyles (PCT) (iii) Poly Brominated biphenyles (PBB)" 4.2 The report from CRCL was categorical that the sample was not an oil emulsion and was free from PCB, PCT and PBB; that it could be used as lubricating oil. However, on the issue whether used lubricating oil in question would fall under the waste category at Sl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, every used oil cannot be treated as waste oil. S. No. 10 of the schedule to the Hazardous Waste (Management and Handling) Rules, 1989 refers only to waste oil. He contends that what they have imported is only used oil, the same cannot be treated as waste oil and they are not required to produce NOC certificate from Pollution Control Board. The report of CRCL is also referring to imported items as used lubricating oil and it also says that the same is not oil emulsion. The report of Punjab Test House clearly gives a finding that the imported goods are neither waste oil nor oil emulsion. In these circumstances, the requirement of NOC is not warranted. 5.2 He also refers to Cenvat Credit Rules wherein in the context of removal of capital goods, two categories of Capital Goods have been envisaged namely, removal of "used capital goods", and removal of capital goods as "waste and scrap". He submits that on the same analogy, used lubricating oil cannot be treated as waste oil and requiring NOC from Pollution Control Board under the provisions relating to hazardous waste (Management and Handling) Rules. The clarification of the Ministry of Environment is with reference to wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this fact has not been contradicted by any evidence by the appellants before the original authority. The original authority has also clearly held that the appellant, as a trader has imported these consignments in the absence of no objection certificate from State Pollution Control Board and that they had no authorisation of handling hazardous waste. A mere averment in the appeal memorandum, without supporting any evidence, that they are in the manufacture of re-refining lubricating oil and industrial oil do not make them as actual user and not a trader. He also submits that the appellants have unauthorisedly removed and disposed of the goods entrusted to them in supardari. No evidence whatsoever has been produced by them before the original authority regarding actual use of the hazardous material. 7.1 I have carefully considered the submissions from both sides and perused the records. The departments' contention is that import of waste oil is permissible only on the basis of valid licence for processing and re-use as per the EXIM Policy 1992-1997; that import of waste oil also requires no objection certificate from Pollution Control Board; and that as opined by Ministry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the Ministry of Environment and Forests requires to be adhered to. 7.5 The Department seeks to rely on the clarification dated 17-12-1997 by "In-charge of Pollution Control Board" that authorisation for the import of used lubricant oil for trading purpose has been refused as there was no provision in the rules to give such permission/authorisation for import of waste oil for trading purposes. This clarification is in the nature of opinion based on presumption that there is no difference between used lubricating oil and waste oil. It does not quote the relevant provisions by which the used lubricant oil is sought to be treated as waste oil. Therefore, the reliance placed by the department on the opinion of the Punjab Pollution Control Board cannot support their case. 7.6 Regarding the submissions that the report of the Punjab Test House to be disregarded as they are not authorised by the Pollution Control Board is concerned, it is seen by the clarification given by the Department vide their communication dated 30-6-10 with reference to the queries made by the Bench vide Misc. Order No. 98/2010 dated 27-4-2010, CBEC vide letter dated 1-8-95 has permitted for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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