TMI Blog2020 (9) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the said imported used tyres are without any cuts. The contention that the imports have been made without authorisation/license from DGFT has been reiterated in the written arguments. If that be so, the question is whether the request for provisional release of the goods can be opposed. The 2016 Rules contain as many as 8 schedules. Schedule 3 is in two parts. Part A contains a list of hazardous wastes applicable for import and export with prior informed consent. Part B contains the list of other wastes applicable for import and export and not requiring prior informed consent. Schedule VI sets out hazardous and other wastes prohibited for import. It is not the case of the respondents that the imported goods in the case on hand fall under Schedule VI. Once the application of the Schedule VI of the 2016 Rules is ruled out, the only question is whether the import of the goods is free or restricted. Under either case, in view of the decision of the Hon'ble Supreme Court in Atul Automations [ 2019 (1) TMI 1324 - SUPREME COURT] , provisional release is very much permissible. The petitioners are entitled to provisional release of the goods under Section 110A of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the seized goods have been restricted for import as per the Foreign Trade Policy and that they could have been imported only under due authorisation. Since the importer did not obtain valid licenses from DGFT, the goods were rightly seized. It is further contended that since the goods also constitute a hazardous waste, prayer for provisional release is also not maintainable. It is finally contended that the writ petitions have to be dismissed for non-exhaustion of the alternative remedy available under the statute. 4. The counsel on either side filed their written arguments and reiterated the contentions set out therein. They also relied on a host of case laws. The learned standing counsel placed heavy reliance on the provisions of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. Some of the provisions relied on by the learned standing counsel are as under : 3.(17).- 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under the E-Waste (Management and Handling) Rules, 2011, as amended from time to time, whichever applicable; (c) importer who is a trader, importing waste on behalf of actual users, shall obtain one time authorisation in Form 7 and copy of this authorisation shall be appended to Form 6. (3) For Part B of Schedule III, in case of import of any used electrical and electronic assemblies or spares or part or component or consumables as listed under Schedule I of the EWaste (Management and Handling) Rules, 2011, as amended from time to time, the importer need to obtain extended producer responsibility authorisation as producer under the said E-Waste (Management and Handling) Rules, 2011. (4) Prior to clearing of consignment of wastes listed in Part D of Schedule III, the Custom authorities shall verify the documents as given in column (3) of Schedule VIII. (5) On receipt of the complete application with respect to Part A and Part B of Schedule III, the Ministry of Environment, Forest and Climate Change shall examine the application considering the comments and observations, if any, received from the State Pollution Control Boards, and may grant the permission f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, the importer shall reexport the waste in question at his cost within a period of ninety days from the date of its arrival into India and its implementation will be ensured by the concerned Port and the Custom authority. In case of disposal of such waste by the Port and Custom authorities, they shall do so in accordance with these rules with the permission of the Pollution Control Board of the State where the Port exists. (3) In case of illegal import of hazardous or other waste, where the importer is not traceable then the waste either can be sold by the Customs authority to any user having authorisation under these rules from the concerned State Pollution Control Board or can be sent to authorised treatment, storage and disposal facility. 5. The learned standing counsel would point out that even according to the petitioners, the imported goods would fall under the category B3140 which falls under Part B of Schedule 3 of the aforesaid rules. If that be so, the petitioners could have imported the same only with the permission of the Ministry of Environment, Forest and Climate Change. It is not the case of the petitioners that such permission was obtained. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with one cut in bead wire and import of used rubbers tubes cut in two pieces however, is free. While the petitioners would claim that the import is free, the original stand of the respondents was that it is restricted. In other words, when the seizure took place, the debate centered on the question whether the import is restricted or free and nothing else. A mere look at the seizure mahazar would indicate that it was not the stand of the respondents that the import of the goods in question is prohibited. In the written arguments filed by the learned standing counsel, it has been mentioned that though the petitioners claim that the imported used tyres are with two cuts in the bead wires, an inspection by the authorities, it was found that the said imported used tyres are without any cuts. The contention that the imports have been made without authorisation/license from DGFT has been reiterated in the written arguments. If that be so, the question is whether the request for provisional release of the goods can be opposed. The decision of the Hon'ble Supreme Court reported in 2019 (365) E.L.T 465 (S.C) (Commissioner of Customs vs. Atul Autom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the Respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine Under Section 112(a) of the Customs Act, 1962. 10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as other wastes Under Rule 3(1)(23) of the Waste Management Rules, which reads as follows: Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country. 11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate Limited (supra) and the only common feature was non production of advance authorisation/import licence. Thus, in our considered view, the decision in the case of Athul Automations Private Limited (supra) is factually distinguishable apart from the fact that the said case arose out of an adjudicatory process in which the factual position was threadbare analysed by two fact finding authorities. That apart, the Hon'ble Supreme Court left the ultimate decision to be taken by DGFT. As rightly pointed out by the learned counsel for the petitioner, both Atul Automations Pvt.Ltd., decision as well as the aforesaid decision of the Hon'ble Division Bench were considered by a subsequent Division Bench in the order dated 10.09.2019 in WP Nos.16126 of 2019 etc batch. That was also a case dealing with provisional release of the goods. When the said order was challenged before the Hon'ble Supreme Court in SLP (Civil) Diary No.3412 of 2020, the SLP was dismissed on 17.02.2020 . 9. The 2016 Rules contain as many as 8 schedules. Schedule 3 is in two parts. Part A contains a list of hazardous wastes applicable for import and export with prior informed consent. Part B cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities in terms of the Hazardous Wastes Rules for directing the petitioners to re-export the goods. This decision of the learned single Judge was also confirmed by the Hon'ble Division Bench in the decision reported in 2016 (336) E.L.T 199 (Mad) (Commissioner of Customs (Sea Port-Import), Chennai vs. City Office Equipments). 11. I am therefore of the view that the petitioners are entitled to provisional release of the goods under Section 110A of the Customs Act, 1962. Since several decisions have been cited on either side, I make it clear that I have chosen to follow the decision of the Madras High Court reported in 2015 (316) E.L.T 199 (Mad) (City Office Equipments vs. Commissioner of Customs) which was confirmed by the Hon'ble Division Bench in the decision reported in 2016 (336) E.L.T 199 (Mad) (Commissioner of Customs (Sea Port-Import), Chennai vs. City Office Equipments) and the decision of the Hon'ble Supreme Court in Atul Automations case. Of course, the adjudication proceedings will go on. The respondents 2 and 3 are directed to provisionally release the goods of the petitioners by taking a bond from them in proper form with such security and con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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