TMI Blog2017 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms Trusha K. Patel, Standing Counsel for the Respondent ORDER ( Per : Honourable Mr. Justice S. R. Brahmbhatt ) 1. Heard learned counsels appearing for the parties. 2. Initially, When the Court heard the matter on 21st July, 2016 and perused the Annexures and the decision rendered by this Court in Civil Application No.9587 of 2015 in Special Civil Application No.8492 of 2015 dated 06.11.2015, was of the prima facie view that the entire issue was in a narrow compass and hence the following order was passed; Learned Counsel for the petitioners placed reliance upon decision rendered by this Court in SCA No.9581 of 2015 and allied matters and invited attention of the Court that the same would cover the present controversy also. Hence, we are inclined to issue NOTICE for final disposal returnable on 01.08.2016. It is expected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the facts of the two cases, so far as the question of law and the contentions are concerned. 8. Learned counsel appearing for the petitioner invited Court's attention to the fact that in these matters and the facts which have been narrated in the matter in which the order was passed by this Court, copy whereof is produced at page 26, and submitted that on principle and contention the matter is similar and therefore, the Court may appreciate the aspect that, that order has attained finality, as it has not been challenged in any other forum. 9. Learned counsel for the petitioner submitted that on earlier occasion when the respondent no.3 vide order dated 22.04.2015 refused clearance of the said consignment on the purported ground that as per the Ministry of Environment and Forest's Office Memorandum dated 24.11.2014, it is mentioned that the import of old and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the provisions of the Customs Act, 1962, subject to the following conditions: (i) The Customs authorities shall depute a Surveyor to check whether the tyres are reusable with or without retreading. (ii) The petitioner shall not clear any goods which are not reusable. (iii) The responsible person concerned will file an undertaking to the effect that they will sell the imported goods in a manner that they will be reused. 10. The petitioner's counsel invited Court's attention to the notification dated 04.04.2016 and submitted that the said notification is not substantively change the entry, which was under consideration before the learned single Judge in the earlier matter. He submitted that Entry No. B3140 is having in the extant Rules, only additional words that and other tyres , but that in itself would change the provision of law, as even by that amended or new additions 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same may be proceeded in its proper perspective. Though, she could not dispute the fact that the very same Office Memorandum was heavily relied upon by her in the earlier matter. Therefore, it is appropriate to extract the same hereunder; Para-7 Vehemently opposing the application, Ms Trusha Patel, learned standing counsel for the respondents No.1 and 2 submitted that the used tyres for reuse fall under Schedule III Part-B (B-3140) of the rules and hence, are regulated for the purpose of import/export. Accordingly, the applicant has to apply to the Ministry of Environment and Forests for import of used tyres for any purpose including reuse thereof. Therefore, they are hazardous substances in relation to the import of which, permission is required to be obtained under rule 16 of the rules. It was submitted that the impugned office memorandum has been issued pursuant to the discussion and conclusions of the 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wastes. The Rules and Notification dated 04.04.2016 contains definition of waste being Rule 3(38), which read as under: waste means materials that are not products or by-products, for which the generator has no further use for purposes of production, transformation or consumption. Explanation:- for the purposes of this clause. (i) waste includes the materials that may be generated during, the extraction of raw materials, the processing of raw materials into intermediates and final products, the consumption of final products, and through other human activities and excludes residuals recycled or reused at the place of generation; and (ii) by-product means a meterial that is not intended to be produced but gets produced in the production process of intended product and is used as such; 17. We are of the prima facie view that the aforesaid definition would not include the goods in question to be called waste, 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, explosiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n innocuous terms that the said are not waste tyres and they have a life of 50% remaining. The plain and simple reading of Entry No.B3140 under the Rules of 2016, would not cover the tyres which are to be reused directly. 20. We need not delve much upon the contentions of the counsels of the parties, as the matter is being considered only for granting interim relief, which were conscious, could be amounting to allowing this petition, at this stage, but if we do not grant the interim relief, then it would also be amounting to rejecting the petition, at this stage. Therefore, we do not propose to foreclose the rival contentions' scope, at this stage, and we say that our aforesaid observations are purely prima facie and only with a view to consider the question of granting of interim relief only. 21. The Court has also taken into consideration the fact that petitioner with goods were landed at Indian Port in the month of June, 2016 and since then they are 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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