TMI Blog2024 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962. The other, viz., prohibition , is an entirely different facet of clearance and undertaken as agency function which, though resort is permissible to the Central Government in section 11 of Customs Act, 1962. The findings of the lower authorities appear to have been caught in circular reasoning of cause and effect as re-classification is seen to have been caused by references to purported restriction on import of waste in Foreign Trade Policy (FTP) and standards formulated by Bureau of Indian Standards (BIS), which the imported goods were held to be, and the restrictions on import of waste plastics brought to bear upon the goods consequent to determination that the goods are waste corresponding to tariff item 3915 1000 of First Schedule to Customs Tariff Act, 1975. It is moot if the different statutes intended waste of plastics to coincide so but that caution does not seem to have impressed itself on the lower authorities. The determination that impugned goods had been misdeclared and prohibited for import is rooted in the purported designating of plastic regrind , in two of the three consignments, as waste by the Central Revenue Control Laboratory (CRCL) - it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item 3901 1090 of First Schedule to Customs Tariff Act, 1975 as declared, confiscating the disputed goods under section 111(d) of Customs Act, 1962 for having been imported without a valid license issued by the competent authority and under section 111(m) of Customs Act, 1962 for misdeclaration, but allowed to be redeemed under section 125 of Customs Act, 1962 on payment of fine of ₹ 1,25,000 solely for re-export failing which these were to be destroyed at cost to importer, besides imposition of several penalties was challenged in appeal and it is the upholding thereof in order [order-in-appeal no.1061(Gr. IIG)/2022(JNCH) dated 07th December 2022] of Commissioner of Customs (Appeals), Mumbai II that is impugned here. 2. At the outset, we find ourselves unable to concur with the consequence of non-availment of re-export, as stipulated in the order of the original authority and which found approval of the first appellate authority, for being contrary to law and, in fact, tantamount to misappropriation of public property. Customs Act, 1962 does not empower destruction of goods; indeed, it would be anathema to a statute enacted in pursuance of constitutional empowerment to tax to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is in the domain of customs clearance. 5. We have heard Learned Counsel and Learned Authorized Representative at length. 6. There is no doubt that import of plastic waste is restricted by the Foreign Trade Policy (FTP) as provided in paragraph 27(2) of Handbook of Procedures (Vol I) 1992-97 RE: March 1996 and, in pursuance thereof, Public Notice 392-PN was issued by Directorate General of Foreign Trade (DGFT) on 1st January 1997 and, as amended from time to time, governs the handling of waste that, despite being so, may be licensed for import. There are standards, too, prescribed by Bureau of Indian Standards (BIS) of which IS 14534:1998 is referred to in the orders of the lower authorities. Chapter 39 of First Schedule to Customs Tariff Act, 1975, which enumerates plastics and articles thereof , comprises varieties of plastics in primary form from heading 3901 through heading 3914 before WASTE, PARINGS AND SCRAP, OF PLASTICS of heading 3915 appears within which, it is as of polymers of ethylene corresponding to 3915 1000 of First Schedule to Customs Tariff Act, 1975 that customs authorities placed plastic regrind contained in two out of the three consignments. All three appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to be waste in relation two samples conjoined with cannot be ascertained in relation to four others, including another of plastic regrind , that the claim of the appellant on lack of facility in the laboratory to analyze such goods, noted in public notice no. 96/2019-JNCH dated 23 rd October 2019 and no. 56/2021-JNCH dated 16th February 2021, can be easily discounted. The other report, viz., that of Central Institute of Petrochemicals Engineering Technology (CIPET), has not ventured to declare the samples to be waste at all and the first appellate authority, despite conceding the bona fides of import thereon, has distinguished the cleared and impugned goods as attributable to 5.1 the said goods had visible impurities and were consisting of dirty cut pieces which evinces ambivalence in sources that were relied upon. Furthermore, there is no discussion on the relevance of such visual evaluation to description corresponding to tariff item 3915 1000 of First Schedule to Customs Tariff Act, 1975 that we have referred to supra or to any of notes in chapter 39 of First Schedule to Customs Tariff Act, 1975 to justify re-classification in accordance with the onus devolving on customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby effluents are generated.. in the impugned order is also demonstrative of lack of appreciation of the intent of the clarification. In the absence of any scrutiny of the manner in which the impugned goods would be dealt with or the effect of impurities and dirty on further processing in India, the conclusions thereon are not tenable. 11. The onus for displacing the declared classification has not been discharged. The test reports do not lead to the conclusion that classification was to be altered or that the goods are restricted for import. In fact, the entire proceedings are vitiated by lack of any expert ascertainment of the nature of the goods. Such determination, in the absence of deliberate and reliable venture towards that end by customs authorities, is best left to the administrative and enforcement agencies designated for such oversight under the relevant statutes for the good of society at large. Between uninformed zeal and deliberate harassment is a very thin dividing line and no whit is added to the credibility of an institution when such blurring occurs in patently ill-considered enforcement. 12. The impugned order is not based on appreciation of facts in totality and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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