TMI Blog2018 (10) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Handing) Rules, 2011. From report of Customs laboratory, Kandla, it is seen that the plastic layer in the packaging material is made of Poly Lactic Acid / Co-polymer Lactic Acid. From all the above report of the Chemical Examiner it is clear that the plastic based on Ploy Lactic Acid is made of starch which is clearly bio-degradable. Therefore, as per the direction of the Commissioner (Appeals) in the first appellate order the adjudicating authority had no option except to allow the appeal, however, he in complete defiance of the Commissioner Appeal’s direction, once again visited on the original issue and given the finding that irrespective of any nature of plastic there is a violation of Rules, 5(d) and 5(g) of Plastic Waste (Management And Handing) Rules, 2011, which is absolutely incorrect and illegal. Hon’ble Supreme Court in the case of R.M. DHARIWAL 100% EOU VERSUS UNION OF INDIA [2016 (11) TMI 502 - SUPREME COURT] has taken up clear view that if the goods are manufactured in 100% EOU and the said goods is exported and not cleared in the domestic market, the operation of Plastic Waste (Management and Handing) Rules, 2011 is exempted. The Hon’ble Supreme Court in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry of Chemical Fertiliser which clearly suggested that the packing material was made of non-Polluting Polymers. The Revenue authorities also sought a report from CIPET, Chennai, wherein, identical view was expressed as to the nature of packing material used by the appellant. Further, the Revenue authorities had sought clarification from the Central pollution Control Board, wherein it was also clarified vide communication dated 27.04.2012 that the packaging material used by the appellant does not violated Rule 5(d) and 5(g) of the Plastic Waste (Management And Handing) Rules, 2011. Thereafter, the Show Cause Notice dated 31.07.2012 involving the period December, 2011 and February, 2012 was issued proposing confiscation of goods covered under shipping bill No. 6478523 dated 01.12.2011 and 7419312 dated 03.02.2012. It was also proposed to be imposed penalty upon the appellant manufacturer as well as other individuals. The adjudicating authority confirmed the charges proposed in the Show Cause Notice whereby the goods covered under both shipping goods was held as liable for confiscation in case of the live consignment covered by shipping bill No. 7419312 dated 03.02.2012 and redem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion passed the order in defiance of the above direction given by the Commissioner. He further submits that the appellant also approached the Hon ble Supreme Court by way of writ petition wherein, the Hon ble Supreme Court allowed the petition on submission of affidavit whereby the appellant was permitted the export goods even though the packaging material contains the plastic, the adjudicating authority has misinterpreted the order of the Supreme Court and said that the same is having prospective effect and not the retrospective. As regard, appeal of Shri R.M. Dhariwal, he submits that the appellant expired on 24.10.2017 and death certificate issued by Pune Municipal Corporation is placed in the file. In support of his submission, he placed reliance of the following judgments: Kalyani Sharp India Ltd Vs. CCE, Pune-lll 2008 (226) ELT 197 (Tri. Mum) Hyderabad Industries Ltd Vs. Collector of Customs 1992 (62) ELT 751 (Tribunal) M/s Blue Star Ltd. Vs. CCE, Mumbai-lll 2018 (6) TMI 920 CESTAT Mumbai R.M. Dhariwal 100% EOU Vs. Union of India 2016 (338) ELT 332 (SC) Paramount Exports Vs. CC. (Export), Nhava Sheva 2015 (323) ELT 409 (Tri. Mumbai) 3. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he chemical examiner, Vadodara. However, they become evident from the report of the chemical examiner, Vadodara. However, the reference to percentage of plastic gives an alternate impression that the sample may comprise of non-bio degradable plastic as well. In the circumstances, I can only hold that the test report is confusing and there is a need for proper re-testing, by appropriate laboratory, equipped to test such goods,, which request was not considered by the respondent department earlier. It is necessary to ascertain if the impugned goods contained only bio-degradable plastic/material, besides other materials like paper, aluminium etc. If the presence of plastic is proven to be nothing but biodegradable plastic/materials, it shall be held that the goods in question shall not be covered by Rule 5(d) 5(g) of the plastic waste (Management Handling) (amendment) Rules, 20011 thus export shall be permissible. In view of the above directions of the Commissioner (Appeals), there was limited scope for the adjudicating authority only to ascertain by getting the product re-tested that whether the plastic used is of bio-degradable nature and if it is found so then there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following order was passed : Learned Senior Counsel appearing for the Petitioner states that the facts that obtain in the present Petition are in pari material with and materially identical to those which existed in the Writ Petition No. 466 of 2011 titled Baba Global Ltd. vs. Union of India . The Petitioner before us is also a 100% export oriented unit exporting Pan Masala, Gutkha and Tobacco across the globe. In Baba Global Ltd. by Order dated 03.09.2013 this Court had taken note of sundry undertakings given by the Petitioner therein, the principal one of which was that no part of the production would be sold or released in the local market in India. The Petitioner before us has filed a similar Undertaking and has assured the Court that it will abide by all the terms of the Undertaking. Baba Global Ltd. was finally disposed of by Order dated 03.09.2013 inter alia by noting the statement of the learned Additional Solicitor General that Baba Global Ltd. would be exempted from operation of the Plastic Wastes (Management and Handling) Rules 2011 (in short the 2011 Rules ). The learned Senior Counsel for the Petitioner rests his case on that Order seeking parity of treatment be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior counsel appearing for the Union of India (Ministry of Environment Forest) submits that the undertaking would not be sufficient to meet the requirements under law. However, it is pointed out that on this ground though a review was filed, it was dismissed on 14.01.2016. 5. In that view of the matter, we confirm the order dated 13.10.2015 and allow the writ petition in terms of the order in Baba Global Ltd. Since the above judgement in the appellants case is based on judgements in the case of Baba Global Limited (Supra) the judgement in Baba Global is also reproduced below:- In this petition filed under Articles 32 of the Constitution, the petitioners have made the following substantive prayers: i. Issue writ of declaration that the exemption contained under rule 2 of plastic wastes (Managements Handling) Rules, 2011 must be available to the petitioner to export its Pan masala, Gutkha and tobacco in multilayered plastic sachet and also in other packages containing plastic. ii. Issue writ of certiorari or any other, writ of direction in the nature of certiorari quashing the impugned Rules 5(d) and 5(g) contained in plastic Wastes (Managements handling) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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