TMI Blog2020 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the first appellate authority was required to decide the competing claims for permitting clearance for home consumption or absolute confiscation as the exhaustive options available under the law. Neither the reviewing authority nor the importer had favoured reexport. It is, indeed, moot if, in the absence of request from an importer and of authority conferred under Customs Act, 1962 or any other law, the proper officer of customs was empowered to insist on such and in the proceedings leading to this appeal, it is only Customs Act, 1962 that has been invoked - in affording the option to redeem goods, absolute confiscation is the consequence of default thereof. From section 125 of Customs Act, 1962, it is seen that confiscated goods vest w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the matter afresh even while accepting their proposition of incorrectness in imposing reexport of the confiscated goods as condition for redemption under section 125 of Customs Act, 1962. Learned Counsel for the appellant concedes that there is no cavil with confiscation under section 111(d) of Customs Act, 1962 arising from non-production of authorisation required for effecting imports of old and used goods as prescribed in paragraph no. 2.31 of Foreign Trade Policy (2015-20) notified under the Foreign Trade (Development Regulation) Act, 1992. It is also on record that order-in-appeal no. 783 to 786 (Gr.V)/2019 (JNCH)/Appeal-II dated 24th April 2019 of Commissioner of Customs (Appeals), Jawaharlal Nehru Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment) Rules, 2016 which was not a ground proposed by the original authority for proceeding against the imports. He further argued that the imposition of condition of re-export, with absolute confiscation in default thereof, was contrary to the decision of the Hon ble Supreme Court in Commissioner of Customs v. Atul Automations Pvt Ltd [2019 (365) ELT 465 (SC)] in which it has been held that 9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods. 12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of other wastes shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly, the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court, therefore, rightly held that the MFDs having a utility p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further argued that, in the absence of authorisation and being non-compliant with conditions pertaining to hazardous waste, the impugned goods were liable to absolute confiscation. 6. It is seen from the records that it was the appellant who had, in their appeal, albeit with different intent, raised the aspect of stipulations in relation to import of hazardous waste. In the circumstances, the first appellate authority cannot be faulted for acknowledging the requirement for such compliance. It is also admitted that the importer is not in possession of a valid authorisation and, hence, the liability to confiscation is not in dispute. It would appear from the records that the attention of the first appellate authority had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted goods vest with the Central Government and, in the absence of authority under law, or by delegation, to destroy, the adjudicating authority is required to protect such goods till appropriate disposition as prescribed by the Central Government. 8. As the orders impugned before the first appellate authority had not considered the principles laid down in re Atul Automations Pvt Ltd, including the quantification of fine, as well as the restrictions imposed by law on treatment accorded to confiscated goods, we find no reason to disagree with the remand ordered by the first appellate authority. Furthermore, with the right to be issued with notice under section 124 of Customs Act, 1962 having been waived, the direction to consider all iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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