TMI Blog2019 (11) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the precedent decisions and by following the same, we also hold that the appellant is liable to pay redemption fine of ₹ 50 lakhs for the consignments imported by them. Imposition of penalties - HELD THAT:- This Tribunal in the ea rlier case have imposed the penalty of 5% of the assessable value under Section 112(a) of the Customs Act, 1962. Keeping in view the consistent practice followed as held in various cases as discussed by the Tribunal in the case of Parag Domestic Appliances and Atul Automation pvt. Ltd.. Therefore applying the ratio of those decisions, we find that the ends of justice shall be met if the penalty imposed under Section 112(a) is reduced to ₹ 25 lakhs (Rupees twenty five lakhs only) for the appellant M/s. Pypye Techserve Private Ltd.. Penalty on the Managing Director Shri Pratik Babaria - HELD THAT:- We uphold the penalty of ₹ 5 lakhs (Rupees five lakhs only) imposed under Section 112(a) of the Customs Act, 1962. Appeal disposed off. - C/21309/2018-DB - Final Order No. 21020/2019 - Dated:- 19-11-2019 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER AND HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anch, Kochi, there was an investigation into the aspect as to whether the old and used multi-function devices (MFDs) being imported through Cochin Port by various importers including the present appellant were without following mandatory requirements prescribed in Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in violation of Foreign Trade Policy 2015-2020. After the investigation, the Department came to the conclusion that the goods imported by the appellant vide 34 Bills of Entry appeared to be illegal import and a show-cause notice under Section 124 of the Customs Act, 1962 was issued to the appellant on the allegation that old and used Digital Multifunction printers/Devices imported vide 34 Bills of Entry should not be considered as illegal import under Rule 15(1) of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and why these printers and devices should not be considered as prohibited goods under Section 3 of Electronic and Information Technology Rules (Requirement of Compulsory Registration) Order, 2012 and why these Digital Multifunction Printers/Devices should not be confiscated under Section 111(d), (m) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner failed to appreciate that MFDs in any case was not a prohibited item but a restricted one and requirement of BIS for import of these devices is not required. he also submitted that this issue is no more res integra and has been settled by this Tribunal in the case of Parag Domestic Appliances and Atul Automation pvt. Ltd. vide its Final Order No.21592-21594/2017 dt. 09/08/2017 and allowed the appeal of the appellant and directed the Customs authorities to release the confiscated goods on payment of redemption fine and penalty. He further submitted that the decision of the Tribunal was challenged by the Department before Hon ble High Court of Kerala and the Hon ble High Court vide its order dt. 14/03/2018 in Customs Appeal No.18 of 2017 dismissed the appeal of the Revenue. The Department challenged the decision of Kerala High Court before the Hon ble High Court of Supreme Court and the Hon ble Apex Court vide its order dt. 24/01/2019 in Civil Appeal No.1057 to 1060 of 2019 dismissed the appeals of the Revenue. He further submitted that the only difference between the present appeal and the appeals decided by the Tribunal in the case of Parag Domestic Appliances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods as absolute confiscation or option to re-export only, is not legally sustainable. Penalties under Section 114AA are also contested. We also note that enhanced valuation of used items now imported, is also not contested. 8. On the first point regarding importation being in violation of Import Policy, the same being an admitted fact, does not require further elaboration. On the second point regarding violation of provisions of Hazardous Waste Rules, 2016, we have carefully examined the submissions of the appellants. First of all, we note that the original authority held against the appellants substantially on the ground that the product is waste. In this connection, we have perused the definition waste . Rule 3(1)38 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 defines waste as under:- waste means materials that are not products or byproducts, for which the generator has no further use for the purposes of production, transformation or consumption. 9. We note that the products under import are MFDs having use as digital multifunctional devices as intended. It is not clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the appellant drew our attention to the decision of Technical Review Committee under the 2016 Rules. The decision of the meeting held on 18th and 19th October 2016 recorded that the Extended Producer s Responsibility (EPR) authorisation requirement under 2016 Rules are to be produced on application to the Pollution Control Board and a time line is prescribed for the same. After considering these time lines, the Committee decided that the implementation of EPR can start from 01/05/2017 and advised the Customs authorities to permit clearance of the imported goods without EPR authorisation till 30/04/2017. 12. Regarding Schedule III Part D of the Hazardous Waste Rules, 2016, we note that the said part deal with list of other waste for import and export without permission of Ministry of Environment. Entry No.B1110 deals with electrical and electronic assemblies destined for direct reuse and not for recycling or disposal. The condition for import of used MFDs was mentioned therein. The said condition was later amended vide Notification dt, 06/07/2016. The effect of amendment is that the trader also can import the said MFDs which are not domestically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their implication for the application of Section 125. The High Court observed that even if the goods are liable for confiscation, the same can be released on payment of redemption. The High Court was examining the provisions of FTDR Act read with Section 125(1) of Customs Act, 1962. The Hon ble Punjab Haryana High Court in Horizon Ferro Alloys Pvt. Ltd. Vs. UOI [2016(340) ELT 27 (P H)] examined the scope of Section 125 and observed as below:- 5. ..... ..... .....Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon ble Madras High Court in T. Elavarasan, 2011 (266) E.L.T. 167 (Mad.), was pleased to rely on the said judgment of Hon ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. In the context of Section 125 if the word prohibited is construed as to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Parag Domestic Appliances Ltd. 18. The total assessable values for the consignments imported by M/s. Atul Automation Ltd. and M/s. Parag Domestic Appliances are about ₹ 5.2 crores and ₹ 1.37 crores respectively. These are enhanced values as per impugned order. The learned counsel for appellants pleaded that the redemption fines of 20% / 22% are harsh. Considering the detention / demurrage charges for one year, as the goods were lying in Port, and also based on past practice in such cases, he pleaded for reduction of fines. 19.1. We note that Hon ble Kerala High Court in Office Devices [2009(240) ELT 336 (Ker.)] and in Navpad Enterprises [2012(278) ELT 172 (Ker.)] held that the discretion vested under Section 125 of Customs Act should be exercised in an objective manner. In the present case, no detailed reasoning has been recorded in the impugned order for fines which are apparently on the higher side when compared to consistent practice of imposing 10% of value as fine. We also have to bear in mind the detention charges to be incurred on goods. The guiding principle for fixing the quantum of redemption fine when the goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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