TMI Blog2013 (7) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... t was delivered by Chitra Venkataraman,J. ) The present Civil Miscellaneous Appeal, filed by the Revenue as against the order of the CESTAT, was admitted by this Court on the following substantial questions of law: "(1) Whether the order of the CESTAT dated 17.4.2012 is legal inasmuch as CESTAT in a Miscellaneous Application filed under Rule 41 of the CESTAT (Procedure) Rules, 1982 passed fresh Orders overriding its own Order, which provided for reference to the Pollution Control Board for ascertaining whether the impugned goods were Hazardous Waste. (2) Whether or not the CESTAT is right in directing the department to get the goods examined by the Pollution Control Board, when the Pollution Control Board is not a prescribed authority for identification of Hazardous Waste as per the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 read with various Schedules thereof. (3) Whether the order of the CESTAT dated 17.04.2012 is correct in directing the department to clear the goods without any evidence to establish that the impugned goods are not Hazardous Waste, and despite the legal position within the aforesaid Rules." 2. The respondent/importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey used were unknown; identifying invisible internal problems associated with used tyres was difficult and by visual inspection, compliance of structural safety could not be detected. The Additional Commissioner of Customs viewed that the Chartered Engineer impliedly indicated that the tyres were in the nature of wastes, which would ultimately result in causing damages to safety, health and environment. Thus the goods had to be classified under CTH 4004 0000 and in terms of ITC HSN, the same were restricted for import. 4. The Authority viewed that in terms of Serial No.B3140 of Schedule B appended to The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, import of waste pneumatic tyres, excluding those which do not lead to resource recovery, recycling, reclamation or direct reuse requires license from Ministry of Environment and Forests. The importer was required to register himself with the Ministry in terms of Rule 14 for importing any hazardous waste for purposes of recycling and reuse. In the absence of compliance, the importer has to re-export the said hazardous waste within a period of 90 days from the date of import. In the absence of non-comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt was entertained that the goods would be hazardous, the certificate from the Pollution Control Board would have been a final word on the issue. In the circumstances, the Commissioner of Customs (Appeals) directed the lower authority to take further action to get the inspection done by the Pollution Control Board and to have a certificate from them within a period of 15 days from the date of receipt of a copy of the order. If the goods were not hazardous, then the order imposing the condition of re-export for redemption would be set aside leaving the other portion untouched, since the case for confiscation existed in view of the import of restricted goods without a licence. Aggrieved by this, the importer went on appeal before the CESTAT. So too the Revenue. 7. By order dated 23.12.2011, while confirming the remand by the first Appellate Authority, the Tribunal modified the order on fine and penalty that even before arriving at a decision, the same could not be levied. Thus the Tribunal directed the original authority to decide the matter afresh within a month's time from the date of receipt of the order of the Tribunal. Subsequent thereto, the importer filed a petition in Misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitions were worn out tyres. 10. A reading of the order of the Division Bench of this Court dated 26.09.2012 shows that during the pendency of the Writ Petitions, this Court directed the Tamil Nadu Pollution Control Board to examine the goods and file a report before this Court in order to have the detailed facts about the nature of import. After referring to the Pollution Control Board's report dated 19.10.2011, this Court held that the imported tyres involved in the Writ Petitions were 6+ years old and that they could not be made use of until and unless they were re-treaded and even after re-treading, they could not be made use of for quite a long time. In the light of the same, this Court allowed the Writ Appeals of the Revenue and set aside the order of the learned single Judge, ordering release on terms. The importers were directed to send back the imports to the countries of origin at their own cost and expenditure immediately. Thus, the order in the Writ Petitions (which in fact was only in Miscellaneous Petitions), which persuaded the Tribunal, is no longer there for the importer to seek release of the goods on terms. 11. Learned Standing Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elease of similar worn out tyres in the Writ Petitions, we do not find any justifiable ground to confirm the order of the Tribunal, so as to allow the release of the goods imported by the importer. 16. We have gone through the report of the Pollution Control Board, which is also enclosed in the paper book filed by the importer herein. We do not find any reason to accept the claim of the importer based on these certificates, for, as rightly pointed out by the Revenue, the certificate speaks nothing on the absence or presence of any hazardous material or the likelihood of its giving out any hazardous material when put to use even after re-treading. We find that the Tribunal, on the first occasion, in the order dated 23.12.2011, had correctly directed the authorities to obtain a report from the Pollution Control Board. It was only the assessee/importer, who filed the Miscellaneous Petition before the Tribunal and sought for re-consideration of the order passed on the basis of the report of the Pollution Control Board dated 14.10.2011, which was available at the time when the Tribunal originally passed the order on 23.12.2011. If the Tribunal had gone into the certificate issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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