TMI Blog2011 (8) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions, do not call for any interference. - Decided against the importer. - W.P. Nos. 18188, 18189, 18198, 18199, 18221, 18246, 18435 and 18436 of 2011 - - - Dated:- 8-8-2011 - K. Chandru, J. Arvind P. Datar, SC for N. Viswanathan for the Appellant K. Ravi Anantha Padmanaban, for Customs and Central Excise for the Respondent JUDGEMENT Excepting W.P. Nos. 18435 and 18436 of 2011, the other writ petitions were heard on 05.08.2011 and the matter was directed to be posted for orders on 08.08.2011. On the day when the matters were listed under the caption for orders, W.P. Nos. 18435 and 18436 of 2011 came up for admission. Mr.N.Viswanathan, learned counsel agreed that these two matters were also covered by whatever the orders that are to be pronounced in the earlier writ petitions. Hence all the matters were clubbed together and a common order is passed. 2. The petitioners in all these writ petitions are importers trading in Secondhand Digital Multifunction Printing and Copying Machines and secondhand Photocopier Machines and it accessories, parts and consumables. They are also having Code Numbers allotted under the Importer and Exporter Code issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the division bench of this court. It was stated the the clearance of the subject goods were being permitted by the other ports such as Kolkata, Cochin either accepting 25% deposit or by imposing appropriate fine and penalty. Further Customs, Excise and Service Tax Appellate Tribunal (CESTAT) at Banbalore had passed a final order Nos.405 to 416 of 2011, dated 28.6.2011 holding that the action of the Customs authorities in confiscating the goods under Section 111(d) of the Customs Act for non production of licence under paragraph 2.17 of the policy is contrary to law and accordingly set aside such confiscation. 4. It was claimed that pursuant to the order passed by the CESTAT, the issues raised by the Customs Authorities have been finally settled in favour of the importers and that the customs are no more justified in seeking any cash deposit towards the release of the subject goods. But, however with the wrong motive to stop the import of the subject goods through the port of Chennai, under the oral instructions of the higher authorities, the authorities during May, 2011 had insisted on the approved Chartered Engineer to show how further enhance the appraisement of the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, year of manufacture and the residual life of goods before they furnish their reports would not serve any purpose. Further, if the other Ports in India are not having any restrictions in this regard, it is not clear as to why the Chennai Port must adopt a different yardstick. It was also stated that the note asserting that if the machine is not functional, it should be treated as e-waste further exposes the intimidator tactics besides exposing his ignorance. No importers will bring e-waste by paying an huge costs incurring the additional cost in packing, transporting and remitting duties on the enhanced value besides incurring demurrage, detention and legal charges. Though the Joint Commissioner of Customs in a few cases held that the old used photocopiers and multifunction machines consisting of mostly electromechanical parts as e-waste, the CESTAT, Chennai Bench had vacated the orders of the Joint Commissioner and held that the secondhand old and used computers cannot be hazardous waste or e-waste. 7. It was further stated that the CESTAT, Bangalore having decided the issue in favour of the importers, the respondents cannot start a different procedure so as to bypass the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whittle down the exemption notification in such a manner. The exemption notification merely reproduced the language of Entry 8525 20 17 and since the exemption notification merely reproduced the tariff entry, the limitation sought to be imposed by the Board would tantamount also to reading the limitation into the classification itself. Since the issue would be ultimately a question of evidence, the onus was on the Department to prove by appropriate evidence that the goods were classifiable under Entry 8525 20 19 being the residuary entry. This the Department could have done by negativing the claim of the importers that the goods were classifiable under Tariff Entry 8525 20 17 and by establishing that the imported goods could not reasonably be classified under any other head. In this particular case the onus had not been discharged by the Revenue. The only evidence on record was the opinion sought for by the Ministry of Finance itself and given by the Department of Telecommunications to the effect that the model LSP 340 was in fact covered by the phrase 'cellular telephone'. Since there is no dispute that the technology used in LSP 340 and the handheld mobile phone is the same, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant for electrical and electronic assemblies. 3. In this regard, the administrative Ministry viz. Ministry of Environment and Forests has been consulted and they have confirmed that items at A1180 of the said Schedule III relating to waste electrical and electronic assemblies or scrap containing components such as accumulators and other batteries etc. require Prior informed Consent. It is also confirmed that items at B1110 of the said Schedule III can be imported with permission from Ministry of Environment and Forests. This entry includes electrical and electronic assemblies (including printed circuit board electronic components and wires) destined for direct re-use and not for recycling or final disposal. The Ministry of Environment and Forest has also confirmed that imports of second hand computers would require the permission of that Ministry. 4. In view of the above, the Board desires that the field formations should carefully and strictly implement the provisions of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the purview of entry B 1110 of Part B of Schedule III of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods which are to be imported. In paragraph No.2 of Note No.4 it was stated as follows: "2(ii)The importers are claiming that old and second hand photocopier/multifunction machines are in good working condition with sufficient residual value to meet the Policy requirements. In order to ensure that their claims are correct, the Chartered Engineer has to compulsorily test each and every machine and each and every function whenever a multifunction machine is imported. So, firstly the CE has to list out all the functions of each multifunction machine and test each of these machines and certify that each of these functions are working. In case of non-functioning of these machines, the same should also be certified by the Chartered Engineer as these machines may have to be categorized as e-waste and have to be handled as per the Hazardous Waste Rules as they have to be treated as hazardous waste. The residual life of each of these machines have to be certified by the Chartered Engineer. This depends on the year of manufacture, usage, wear and tear and the general condition of the machine. It also depends on the fact that each machine at the time of manufacture is rated for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circulars. 18. Since the petitioners heavily relied upon the recent order of the CESTAT, Bangalore, it is necessary to look into the order to see whether any observations made in Final Order Nos.405 to 416 of 2011 would in any way impeach upon the present Standing Order. On the contrary, the following passage found in the said order will go against the petitioners company. In paragraph No.6.3, it was stated as follows: "6.3.The lower authorities have directed the appellants to get the goods examined by the Chartered Engineer which was done by appointing M/s.SGS India Pvt. Ltd. for doing the job...." 19. In paragraphs 6.6 and 6.7 of the order, it was stated as follows: "6.6. It is also seen from the factual matrix, that the Chartered Engineer who were appointed, have also clearly indicated that the imported goods in question are digital multifunctional print and copier machines as per the inspection report reproduced in para 6.3. of this order; if that be so we find that the sdaid machines cannot be called as photocopier machines as photocopier machines per se, have been specifically identifiable as photocopier machines in the explanatory notes to HSN, which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Most of these multifunctional machines contained printer cartridges and they were found to be packed with black tonner residues. 7. It is felt that import of such Second Hand Multifunctional Print and Copying Machines should not be allowed as it results in scrapping of such machinery in India and such scrapping will result in generation of e-Scrap and plastic wastes which will have to be managed or disposed in India." 22. He also observed that the hazardous wastes can be imported only with a permission of the Ministry of Environment and Forests, Government of India. Therefore, he submitted that the TNPCB should take up the issue with the Government of India. In fact, the High Court of Kerala in its order dated 1.12.2010 in W.P.(C) No. 34102 of 2010 in a case relating to Shivam International, Sikar vs. Commissioner of Customs, Cochin and Additional Director, Directorate of Revenue Intelligence, Cochin, had observed as follows: "...having regard to the fact that there is large scale import of e-waste into India, it cannot be stated that the action of the Department that insisting that each item should be connected to a power source to find out, whether it is in a wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its power under Section 226 of the Constitution could sit in appeal or judgment over the administrative decision of the President who might have felt that the case was of all-India importance and was required to be decided by a larger bench of three members. Such an administrative order is not open to scrutiny under Article 226 of the Constitution of India except in extraordinary cases wherein the order is shown to be a mala fide one...." 26. Further, even for exercising the quasi judicial power, the executive authorities in order to determine certain objective facts, as a preliminary step to discharge an executive function and those decisions are administrative in character and are not amenable to the writ of certiorari as held by the Supreme Court in Province of Bombay v. Khushaldas S. Advani reported in 1950 SCR 621 = AIR 1950 SC 222 and in paragraph 6, the Supreme Court had observed as follows: "6........The word 'quasi-judicial' itself necessarily implies the existence of the judicial element in the process leading to the decision. Indeed, in the judgment of the lower court, while it is stated at one place that if the act done by the inferior body is a judicial act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraphs 10 and 11, the Supreme Court had observed as follows: "10...... What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an appellate authority over the acts and deeds of the corporation and seek to correct them? Surely, it cannot be. That is not the function of the High Court under Article 226. Doctrine of fairness, evolved in administrative law was not supposed to convert the writ courts into appellate authorities over administrative authorities. The constraints 'self-imposed undoubtedly' of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless. 11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland and as such the report is popularly known as 'Brundtland Report'. In 1991 the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called 'Caring for the Earth' which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in area ..... X X X X Extracts X X X X X X X X Extracts X X X X
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