TMI Blog2023 (9) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... L) -I, NEW DELHI VERSUS VATIKA TOWNSHIP PRIVATE LIMITED [ 2014 (9) TMI 576 - SUPREME COURT] and KOLHAPUR CANESUGAR WORKS LTD. VERSUS UNION OF INDIA [ 2000 (2) TMI 823 - SUPREME COURT] , the issue is no longer res integra that new OM would be applicable for adjudicating the imported goods which provides for examination and release of the goods container wise, within the overall limits, specified in the said OM in percentage terms, of non paper materials/contaminants and other conditions set out in the said OM dated 10.01.2023. The Department is directed to examine the goods as per terms of the revised OM (F. No. 23/107/2022HSMD dated 10.01.2023) containerwise and to be so done in presence of the importer. The containers of paper waste where the goods are found in conformity with OM dated 10-01-2023, may be provisionally released on Bond/Undertaking. Where paper waste is found to be contaminated in a container, it would be dealt with under the new OM dated 10-01-2023 and such goods would be either re- exported or allowed to be disposed of in terms of the said OM dated 10- 01-2023. The adjudicating authority shall adjudicate the show cause notice after the exercise of provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing unit (henceforth called as unit) and the imported material shall not be sold further. iii. The importers would have to ensure that all recyclable materials are actually recycled by them. There should be no disposal of materials-other than by recycling. iv. The imported wastepaper consignment shall not contain any municipal solid waste or post consumer domestic waste or biomedical waste or any other type of contaminants. In case of any such contaminant being found, the consignment will have to be sent back to the exporting country and the importer shall bear the cost thereof. v. An inventory of imported material will be maintained by the unit including the name of company and industry from where imported. vi. A record of waste material generated, while recycling the imported waste paper, along with the quantitiy and characteristics of the disposal of non-recyclable waste including toxic waste should be maintained by the unit. The non-recyclable waste may be disposed of as per the requirement of the State Pollution Control Board concerned to avoid any surface or ground water contamination. vii. The extent of recyclable material, which is otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. xx xx 32. xx xx 33. xx xx 34. xx xx 35. xx xx 36. xx xx 37. xx xx 38. xx xx 39. xx xx 40. xx xx 41. xx xx 42. xx xx 43. xx xx 44. xx xx 45. xx xx 46. Unprinted Bleached Plate Stock None permitted 47. Printed Bleached Plate Stock Kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/2020HSM, as under: Point (iv) of the OM of 2010, under reference is an overriding prohibition and no amount of Municipal Waste, Post consumer domestic waste or Bio; medical waste or any other contaminants is allowed with the consignment of waste paper. In case such contaminants are found, then the consignment will have to be sent back to the exporting country. Such contaminats cannot be segregated and disposed of in India and the Customs authorities have to ensure compliance of the OM in Question. 4. The Appellant preferred an appeal before the Learned Commissioner (Appeals) which was heard on 01-02-2023. In the course of hearing, the appellant filed written submissions, wherein it brought to the notice of the Learned Commissioner ( Appeals) that in the midst of the proceedings, OM dated 11th May 2010 issued by MOEF has been superceded by OM dated 10th January 2023 while old OM is not saved by the new OM dated 01-02-2023. They submitted that OM dated 10th January 2023 was issued relaxing the conditions of import and the extent of non-paper items have been increased to 5% from 1% as contained in previous OM dated 11th May 2010 in respect of 49 specified grades of non p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. xx xx 9. xx xx 10. xx xx 11. xx xx 12. xx xx 13. xx xx 14. xx xx 15. xx xx 16. xx xx 17. xx xx 18. xx xx 19. xx xx 20. xx xx 21. xx xx 22. xx xx 23. xx xx 24. xx xx 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th covers, Unsorted tabulating cards, colored tabulating cards, Carbonless treated ledger, Plastic windowed envelops, Textile boxes, Printed TMP, Unprinted TMP, manila tabulating cards, Sorted colored ledgers 49. All kind of plastic, wood, Sand, Metal Textile and Glass 50. Bio Medical Waste, Municipal Solid Waste, Post Consumer domestic waste and any other waste or contaminants not enlisted in this OM. Not permitted v. The imports should be accompanied by a certificate of origin naming the foreign facility from where the material originated, whether it is a result of single strea or dual stream waste collection, and a credible pre-shipment inspection report based on a bale-break report. vi. The importer should obtain a quarterly certificate from the SPCB, that the non-paper waste included in the previous imports made in quarter preceding the immediately preceding quarter, has been scientifically disposed of an especially, the plastic has been sent to waste to energy plants or cement kilns. This certificate should be a mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole consignment. 7. The Appellant relied upon the judgment of the Constitution Bench of Hon ble Supreme Court in the case of Kolhapur Cane Sugar Works Limited vs. Union of India reported in 2000 (119) ELT 257 SC for the proposition that Section 6 of General Clauses Act would not apply to a lapsed Rule deleted without a saving clause. and Section 159(A) of the Customs Act 1962 would also not apply as OM dated 11th May 2010 of MoEF was not issued under Customs Act 1962. They thus contend that the said pending proceedings would automatically lapse because of no saving Clause contained therein. The Appellant also cited the judgment of the constitution bench of Hon ble Supreme Court in the case of Commissioner of Income Tax vs. Vatika Township Private Limited reported in 2015 (1) SCC to canvass the point that beneficial notification need to be given retrospective effect. The Appellant relied upon Para 30 and 31 of the judgment where in the court has held as under: 30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proach the respondent authorities with an application to permit the petitioners to use the raw materials lying in the custody of the petitioners in view of the Rules, 2021 vide notification dated 27-1-2021. On receipt of such application, the respondent authorities are directed to permit the petitioners to use the raw materials which were imported by the petitioners and which were the subject matter of the petitions and such materials being kept separate unutilised by the petitioners as per the directions of this Court. The undertaking given by the petitioners before this Court is also discharged in view of the fact that now the petitioners can use such raw materials in SEZ units after the notification dated 27-1-2021. 9. The Appellant also relied upon the judgement of the Division Bench of Hon ble Calcutta High Court in the case of PR. Commissioner of Central Excise vs. Himadri Speciality Chemical Ltd. reported in 2022 GSTL 264 Cal where the Court held:- 11. As could be seen from the above clarification, the decision in Cadila Health Care was also taken note of by the department and the position stood clarified that sales promotion would include services by way of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate either finally or tentatively at the time of provisional release as to whether the alleged infractions committed or the consequent liability, if any, of the seized goods to confiscation under the Customs Act; (ii) The order of provisional release is an interlocutory exercise and does not finally adjudicate on any liability; (iii) The exercise of power under section 110A of the Customs Act to release imported goods on a provisional basis is essentially and fundamentally discretionary in nature; (iv) Section 110A of the Customs Act contemplates release of any goods. Thus, both prohibited goods and non-prohibited goods can be released; (v) If the goods are not per se prohibited, question of going into prohibited goods as per Om Prakash Bhatia case does not arise at the stage of provisional release; (vi) A Circular which absolutely proscribed provisional release of prohibited goods or where any provisions are contravened, is void; (vii) The Tribunal is competent to order provisional release and fix terms and there is no need for remand; (viii) While passing an order for provisional release, there is no adjudication of competing rights and liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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