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TMI Blog2017 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the other side to be ready with the matter with reply, if any, as the Court may decide the matter even in absence of the other side. Direct service is permitted." The matter was thereafter time and again heard, but was required to be adjourned for want of representation on the part of the respondent no.2, as though served no one was appearing, and only there was a representation on behalf of respondent nos.1 and 3. 3. Learned counsel appearing for the respondent nos.1 and 3 urged the Court that let the matter may not be disposed of finally in absence of any representation on behalf of respondent no.2, as the instructions and directions of respondent no.2 in respect of imported goods are binding upon the Custom Authorities. Hence, the matter was required to be adjourned. 4. Learned counsel appearing for the petitioner contended that the goods are lying at the Indian Port since May, 2016 and non clearance thereof saddle the petitioner with huge demurrage and damages. In case, if the otherside are not ready now for final disposal of the matter, let the matter be at least heard, so far as the interim relief is concerned, as the petitioner is incurring huge demurrage and los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used tyres should be treated as "Prohibited Goods" instead of "Restricted Goods". The said order was subject matter of challenge in Special Civil Application No.8492 of 2015 and Civil Application therein came to be filed being Civil Application No.9587 of 2015, in which the Court has extensively dealt with the contention of the respondents based upon the Office Memorandum of the Environment and Forest Department dated 24.11.2014 and has clearly held that the said O.M. not pursuant to any power conferred by the concerned Act or the Rules framed thereunder including the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. The following paragraphs from that order need to be set out as under; "14. As regards the impugned office memorandum, the same does not appear to be relatable to any power conferred by the Act or the rules framed thereunder, including the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. 15. On behalf of the respondents, reliance has been placed on rule 23 read with Schedule VII to the rules. In the opinion of this court, rule 23 of the rules merely provides for duties of various authorities and Schedule V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions of the words in the entry, it cannot be said that the tyres for direct reused can ever be said to be waste so as to attract the prohibition, arrest or restrictions. 11. Learned counsel appearing for the petitioner submitted that in fact as per the provisions in the Customs Tariff Act, the import of used tyres is permissible under Entry No.4012 and as per the bill of entry the classification is not disputed by anyone. However, unfortunately, the Customs Authority - respondent no.3 has placed unfortunate reliance upon the notification dated 04.04.2016 and passed an order on 02.062016 treating the goods to be prohibited goods not to be permitted without there being license permission from DGFT and MOEF. This is contrary to the provision of law and, therefore, the same cannot be sustained as the petitioner is incurring huge demurrage and damages on account of non clearance of the goods for no rhyme or reason on the part of the authorities. 12. Learned counsel appearing for the respondent nos.1 and 3 invited Court's attention to the old entry being Entry No. B3140, which was under consideration before this Court when the order at page 26, being Civil Application No.9587 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33rd Technical Review Committee meeting constituted under the rules held on 28.10.2014 which was acceded to by the Ministry of Environment and Forests. Referring to Schedule III (Part B) of the rules, it was pointed out that as per rule 14(2) read with the note given below the Table, all other wastes listed in this Schedule -3 (Part-B having no star/s (*...) can only be imported in to the country with the permission of MoEF. Thus, the applicant is statutorily required to obtain prior permission of the Ministry of Environment and Forests for import of all such waste without star/s which include waste pneumatic tyres, excluding those which do not lead to resource recovery, recycling or direct reuse as listed at B-3140 of Schedule III Part-B. It was submitted that under rule 17 of the rules, the export and import of hazardous wastes from and into India shall be deemed illegal if it is without the permission of the Central Government in accordance with law. The applicant, in contravention of the rules, has imported second hand tyres without obtaining the prior approval prescribed under the rules and therefore, in view of the provisions of rule 17(2), it is required to re-export the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, much less, hazardous waste, as hazardous waste is also defined under Rule 3(17), which read as under; "hazardous waste" means any waste which by reason of characteristics such as physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive, causes danger or is likely to cause danger to health or environment, whether alone or in contact with other wastes or substances, and shall include- (i) waste specified under column (3) of Schedule I; (ii) waste having equal to or more than the concentration limits specified for the constituents in class A and class B of Schedule II or any of the characteristics as specified in class C of Schedule II; and (iii) wastes specified in Part A of Schedule III in respect of import or export of such wastes or the wastes not specified in Part A but exhibit hazardous characteristics specified in Part C of Schedule III;" 18. In light of the aforesaid two definitions, now let us examine the Entry No.B3140, as it originally stood, when this Court passed and order at page 26, Annexure-C dated 06.11.2015 and the entry with additional words as part of notification dated 04.04.2016. Both the entries are required to be reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awaiting the clearance from Customs Department. The bill of entry was filed on 30.05.2016 and the classification of the goods under Entry No.4012 of Customs Tariff Act is also not disputed. The Court is of the considered view that as the Custom Authorities have not disputed the classification of goods under the Customs Tariff Act and the classification is not a question of any dispute, the appropriate interim relief, if not granted, then the petitioner will suffer irreparable loss and injury, despite there being a prima facie case and finding in favour of the petitioner. We are also mindful of the fact that petitioner has stated on oath in Paragraph no.2.7 that the government approved valuer has issued certificate on 02.06.2016, as the certificate is also indicating that the tyres have residual average life at 50%. The inspection report is produced at Annexure-F. 22. In view of the aforesaid facts, we are of the prima facie view that the goods in question cannot be said to be a waste in any manner, much less, any hazardous waste so as to attract the provision and attract the prohibition under the Rules. Moreover, the prima facie reading of the Entry No.B3140 also clearly goes to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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