TMI Blog2020 (10) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... d the provisional release, subject to various conditions. There is no error apparent in the impugned orders passed and it also protected the interests of both parties. It is also made clear that the claim or otherwise of the Writ Petitioner/Importer is also subject to the out come of the adjudication proceedings, which came to be initiated subsequent to the filing of the Writ Petitions - Appeal dismissed. - W.A.(MD)Nos.863, 864, 867 to 869, 871, 873, 875 and 877 of 2020 and C.M.P.(MD)Nos.4778 of 2020 in W.A.(MD) No.863 of 2020, C.M.P.(MD) No.4782 of 2020 in W.A.(MD) No.864 of 2020, C.M.P.(MD)Nos.4786 of 2020 in W.A.(MD) No.868 of 2020, - - - Dated:- 29-9-2020 - HONOURABLE MR. JUSTICE M. SATHYANARAYANAN AND HONOURABLE MR. JUSTICE P. RAJAMANICKAM W.A.(MD)Nos.863, 864, 867 to 869, 871, 873, 875 and 877 of 2020 and C.M.P.(MD)Nos.4778 of 2020 in W.A.(MD) No.863 of 2020, C.M.P.(MD) No.4782 of 2020 in W.A.(MD) No.864 of 2020, C.M.P.(MD)Nos.4786 of 2020 in W.A.(MD) No.868 of 2020, C.M.P.(MD)Nos.4788 of 2020 in W.A.(MD) No.869 of 2020, C.M.P.(MD)Nos.4790 of 2020 in W.A.(MD) No.871 of 2020, C.M.P.(MD)Nos.4799 of 2020 in W.A.(MD) No.873 of 2020, C.M.P.(MD)Nos.4807 of 2020 in W.A.( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents to release the goods Containers of Used Rubber Tyre Cut in Two Pieces (used Rubber Tyre with one cut in bead wire) imported. 5. The Writ Petition was entertained and on behalf of the appellants/respondents counter affidavits have been filed. It is the stand of the appellants/respondents that the Used rubber tyres with one cut in bread wire is free under the Foreign Trade Policy, however, in the present case the cargo imported by the petitioner is Used rubber tyres, but there was no cut in the bead wire , which is a restricted item importable only under valid authorization of Director General of Foreign Trade and that apart, the respondent/writ petitioner had not obtained valid License from the Director General of Foreign Trade for the import of Used Rubber Tyres and therefore, the cargo imported were seized by the Customs Officers of SIIB for further investigation under the Customs Act, 1962 in the presence of Customs Broker of the Importer/ respondent. Thus, it is the specific stand of the appellants that since the respondent has imported the goods violating the Import Policy conditions, the goods cannot be released at this stage. 6. In sum and substance, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rule all the import of waste without permission of Central Government is deemed to be illegal and Rule 15(2) mandates that the imports made without permission should be directed to be re-exported. 10. The learned counsel for the appellants/respondents in support of his submissions has placed reliance on the judgment rendered by a Division Bench of this Court reported in 2019 (367) E.L.T. 920 (Mad.) [Commissioner of Customs, Chennai - II v. City Office Equipment]. 11. Mr. A.K. Jayaraj, learned counsel accepts notice on behalf of the respondent and would submit that subsequent to the filing of the Writ Petitions, the Joint Commissioner, Office of the Commissioner of Customs, Custom House, New Harbour Estate, Thoothukudi has issued show cause notice under Section 124 of the Customs Act, 1962 and the said proceedings will be defended in an appropriate manner. 12. The learned counsel for the respondent/writ petitioner meeting the submissions of the learned counsel for the appellants/ respondents has drawn the attention of this Court to the counter affidavits and would submit that as to the alleged infraction of Hazardous and Other Wastes (Management and Transboundary Move ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat will be freely importable), the inspection done revealed that what was imported was used rubber tyres and there was no cut in the bead wire and therefore, it is a restricted item, which violates the import policy and therefore, the same has not been released. 17. As already pointed out, as regards the invocation of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, no stand has been taken in the counter affidavits as to application of the said Rules. Be that as it may, during the course of argument the said stand was taken. 18. The learned Judge had dealt with the merits of the rival claims in paragraph 7 of the impugned common order and after taking note of the various decisions in paragraph 10 has recorded a finding that no proceedings have been initiated by the authorities in terms of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 for directing the petitioners to re-export the goods. Now, coming to the issue relating to the provisional release, the learned Single Judge placed reliance on the decision of a Division Bench of this Court reported in 2016 (336) ELT 199 (Mad) [Commissioner of Customs (Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any positive finding as it may affect his case in the adjudication proceedings. 23. A perusal of the Office Memorandum dated 01.07.2016, issued by the Department of Industrial Police and Promotion, Ministry of Commerce Industry, Government of India would disclose that the Directorate General of Foreign Trade was granted opportunity as to the making policy as to the used rubber tyres/tubes cut into two separate pieces and it is further clarified that it prevents misuse, then the Department has no objection for the same, subject to the condition, it should not be used for extracting oil. 24. The learned counsel for the respondent/writ petitioner has also drawn the attention of this Court to the averments made in the writ petitions in this regard that they will not misuse the imported items and it is also subject to the outcome of the adjudication proceedings, which are under contemplation. The said submission is also placed on record. 25. The learned counsel for the appellant/revenue has drawn the attention of this Court to pages 19 to 21 of the typed set of documents, which contain the de-stuffed items of the imported goods and made an attempt to point out that those impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Management Rules, 2016 and it is also noted in determined terms that two things were put against the importers i.e., noncompliance of the conditions in the Foreign Trade Policy, that is, in not obtaining prior authorisation/licence and not obtaining appropriate clearance permission under the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and accordingly decided the case in favour of the appellants/respondents. 28. In the considered opinion of this Court, in the light of the non taking of stand by the appellants/responds as to the applicability of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in the light of the stand taken in the Writ Petitions, it cannot be concluded as a restricted item, for which, provisional release is not prohibited. It is also to be pointed out at this juncture that the third appellant/third respondent in compliance of the order passed in the Writ Petitions has also ordered the provisional release, subject to various conditions. 29. Therefore, this Court, in the light of the above facts and circumstances and also upon consideration of the rival submissions and independent application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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