TMI Blog2017 (3) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... bhan The present two appeals are directed against the order-in- appeal dated 02.03.2016 passed by the Commissioner (A) Customs IGI Airport New Delhi. Brief facts of the case are that on the basis of an intelligence, the Delhi Zonal Unit of DRI investigated a case of import of certain petro-chemical products viz. Pressed Distillate oil (FDO), Heavy Alckeys (RPO), calcium base grease and slack Wax imported at ICD, Ludhiana and ICD, Tughlakabad, New Delhi for mis declaration and undervaluation, by various importers including M/s.Om Udyog, (IEC 3092003551), E-403, Phase VI, Focal Point, Ludhiana Punjab (hereinafter referred to as M/s. Om Udyog ) and M/s. S K Petrochem C-1/4, Krishna Vihar, New Delhi a firm controlled by Shri Jeevan Jain, Proprietor of M/s. Om Udyog, Ludhiana, Investigation further revealed that Shri Jeevan Jain used to import the above mentioned Petroleum products by resorting to mis-declaration and under valuation and subsequently such goods were sold through Delhi based traders including M/s. Goyal Petrochem, H-3 Shivaji Park, Punjabi Bagh, New Delhi owned by Shri Ashok Goyal. 2. Searches were conducted on 28.1.2013 at the premises of M/s. Goyal Petrochem, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Point (COC) - above 220o Density (gm/ml) of 15 o C - 1.0164 Kinematic Viscosity at 100o 38.23 cst Aromatic content - 74.9 by wt Non-Aromatic content 25.1 % by wt Aniline Point 55o C PAHs Content (mg/kg) 261.73 (A12 A 15 Class A Schedule II) No technical term / Literature available on the declare description i.e. Heavy Alckeys in this laboratory, however above analytical findings reveal that sample under reference is organic residual product generated from petro chemical process and pyrolytic operation (waste streams). Further accordance to Hazardous Waste (Management Handling and Transboundary Movement ) Rules, 2008. It was subjected for Waste constituent s analysis and found that PAHs content in this sample are more than 50 mg/per Kg. therefore, it merits to fall under the category of Hazardous Waste as per said Rule. 3. As per the IS 506, 9136, 9917 -1993, the value of the kinematic viscosity @ 40o C Flash Point Calcium Grease are as under: (I) IS 506 -: 1993:- Kinematic Viscosity @ 40 0 C(cSt) Grade 1 90 to 110 Grade 2 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrochem, 39/24, Sunita Vihar, Ram Gali, Mundaka, New Delhi. A penalty of ₹ 1,00,000/- was also imposed on Shri Ashok Goyal of M/s. Goyal Petrochem and upon Shri Jeevan Jain, Prop. M/s. Om Udyog. Ludhiana under section 112 of the Customs Act, 1962. 6. Aggrieved by this Order-in-Original the appellants have filed appeal before Commissioner (A) who vide the impugned order upheld the order in original. 7. Hence the present appeal. 8. With the above background we heard Shri R K Philips, appearing for both the appellants as well as Shri Amresh Jain, A.R. for the respondent 9. The Ld. Counsel reiterated the grounds of appeal and submitted as follows: i) The CRCL in its report relied by Revenue are not pertaining to the samples drawn from the premises of the appellant. ii) The Lorry receipts which have been issued by M/s. Maharaja Goods Carriers showing the consignee name as M/s. S K Petrochem on the back side name is Ashok Goyal . On the basis of the above, Revenue has concluded that the appellant is engaged in drawing of hazardous petroleum products imported by Shri Jeevan Jain of Ludhiana. On behalf of the appellant he denied that these do not pertain to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II/Class-A under serial no. A 12, A13, A14 A15 of Hazardous Waste Rules, 2008 and the same were covered under Heading A 12-A 15 of schedule-II Class-A of Hazardous Waste Management handling and Trans-boundary Movement Rules, 2008. I observe that the CRCL test reports have categorically held that the goods were hazardous wastes as specified in Part A of Schedule-III/II of Hazardous Waste Management handling and Transboundary Movement Rules, 2008, which mandate the requirement of prior informed consent of the country from where it is imported or exported to, and also would require the license from the Directorate General of Foreign Trade, and a prior written permission of the Central Government. Part A: List of Hazardous Wastes Applicable for import with prior Informed Consent (Annexure VIII of the Basel Convention) Based No. Description of Hazardous Wastes A-I Metal and Metal bearing wastes. A-3 Wastages containing principally organic constituents which may contain metals and inorganic materials. A3010 Waste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ashok Goyal, , Prop. Of M/s Goyal Petrochem has not disclosed the facts regarding procurement of Calicum Grease and Heavy Alckeys but the documents seized from their premises i.e. G R. and e-mail print out revealed that the impugned goods were imported by Shri Jeevan Jain and diverted to Shri Ashok Goyal, Prop. of M/s Goyal Petrochem. I find that the goods stated as Calicum Grease and Heavy Alckeys appears to be imported in violation of the provisions of the Customs Act, 1962 as he conditions prescribed in Hazardous Waste (Management , Handling and Tran boundary Movement) Rules, 2008 were not fulfilled complied with. In view of above, it is clear that the impugned goods i.e. Heavy Alckeys and Grease were liable for confiscation under the provisions of Section 111 (d) 111(m) of the Customs Act, 1962 and for their acts of omission and commission. M/s Goyal petrochem, H-3, Shivaji Park, Punjabi Bagh, New Delhi and Shri Jeevan Jain. Prop. of M/s. Om Udyog, E-403, Phase-VI, Focal Point, Ludhiana are liable for penalty under Section 112 and 114 AA of the Customs Act, 1962, therefore he O-I-O is just and proper. 12. We are in agreement with the findings of the Ld. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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