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TMI Blog2008 (11) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... er/paperboard, they regularly import their requirement of cost competitive waste paper from these countries. 4. It is further seen that the appellant has filed two Bills of Entry bearing Nos. 371549, dated 13-9-2005 and 372089 dated 20-9-2005 through their agent M/s. Indev Shipping Services Limited/the third respondent for clearance of 40 numbers of containers, declaring the cargo as 'waste paper'. The goods on de-stuffing and on examination by the Customs on 22-9-2005, were found to be waste paper mixed with used plastic carry bags, pet bottles, used clothes, shoes and other household articles, used soft drink metal cans leaching out dirty liquid and emitting foul smell, thus falling within the definition of 'municipal waste' under Chapter 38 Note 4 of the First Schedule to the Customs Tariff Act and hazardous waste having characteristics of eco-toxic and infectious substances to be dealt with under the provisions of the Hazardous Wastes (Management and Handling) Rules, 1989. 5. Thus, since the goods imported were found to be unsorted scrap of waste paper, heavily contaminated with municipal waste/garbage attracting the classification of 'municipal waste' and 'hazardous waste', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show-cause notice, the appellant, by their letter dated 5-10-2005, has requested permission for re-export of the entire cargo of 40 containers enclosing the copy of supplier's letter dated 26-9-2005 and the Commissioner of Customs, by the Note Order dated 7-10-2005 has ordered immediate re-export of subject cargo in 40 containers. Accordingly, the appellant filed eight shipping bills for re-export of 40 containers to the consignees 'M/s. Evergreen specialities Inc., 394 Vanderveer Road, Bridgewater, UAE. Pursuant to this, the appellant requested the first respondent/M/s. Norasia Container Lines Limited to allot forty numbers of 40 feet empty containers to stuff their cargo to be shipped from Tuticorin to Ajman. On allotment of containers by the first respondent, the appellant took the 40 containers to the warehouse and did the stuffing, loading and sealing of the containers in the presence of the Customs officials and handed over the sealed stuffed container for shipment. Therefore, the first respondent would contend that neither themselves nor their agent have seen the cargo or its stuffing process or the contents of the 40 containers and the appellant and the third respondent/In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any one of the Customs Bonded Warehouses in Tuticorin at his own cost within a period of two weeks, under the supervision of an officer nominated by the fifth respondent. (b) The Customs Bonded Warehouse to which the containers are shifted, shall be kept under the lock and key of an officer nominated by the fifth respondent. (c) If the petitioner or the second respondent is able to get 35 containers of the same size and description for hire, they shall be permitted by the fifth respondent to transfer the cargo from the containers in question to the newly hired containers, again under the supervision of the officials of the Commissionerate of Customs, as had been done at the time of re-export to Ajman, UAE. After such transfer, the petitioner may take away their empty containers. (d) Within four weeks from this date, the fifth respondent shall have the cargo examined by the Team of Officials nominated by the Central Pollution Control Board for a final determination of the question as to whether the goods are hazardous in nature which could only be incinerated or disposed of otherwise. The cost of such examination shall be borne in the first instance by the second respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to avoid such illegal traffic into the country or discourage such illegal imports into the country in future and keeping in view the protection of the environment as well as the public in India, that may likely to pose a threat to the environment, if such illegal consignments are handled or disposed of in the country. The visited team members hereby strongly recommend that the Commissioner of Customs, Custom House, Tuticorin shall direct the second respondent (ITC Limited) to re-export all such consignments to the exporter (in this case M/s. Evergreen specialities Inc. USA) in accordance with the Rules 15(2) of Hazardous Waste (Management and Handling) Rules, 1989 and further amendments made in the year 2000 and 2003." 12. Thereupon, the Customs Department by the order dated 23-11-2007 has directed the ITC Limited to comply with the above recommendations in the report of Expert Panel and to re-export the 35 containers in accordance with Rule 15(2) of the Hazardous Waste (Management and Handling) Rules, 1989 at the risk and costs of ITC. Aggrieved by the order passed by the learned single Judge in W.P. (MD) No. 721 of 2007, extracted supra, the second respondent therein viz. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the mistake committed by him. Therefore, the appellant, cannot now turn down and say that he is not the importer of the goods in question. 16. It has also been argued by the learned Additional Solicitor General and the learned standing counsel for the Pollution Control Board that before the learned single Judge all the parties have agreed to send an expert body to examine the contents of the cargo and when, in pursuance of such a consent given by all the parties to the lis, the learned single Judge has passed the orders, issuing directions to the Customs Authorities and the Pollution Control Board, the appellant cannot challenge the said order of the learned single Judge, since he has also consented for passing of the same order. They would further argue that in due compliance with the directions of the learned single Judge and on the recommendations of the Expert Body, the appellant was directed to re-export the cargo, which cannot be challenged by the appellant. 17. The learned counsel appearing for the seventh respondent, who has been impleaded as a party respondent to these proceedings would submit that he has not been made as a party to the original writ proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointing a team of experts and even to dispose of the cargo in the manner suggested by the team of experts, after the recommendations of the Expert Body, the appellant cannot now take a 'U' turn and contend otherwise, as if he has not consented for such an order to be passed by the learned single Judge. On this sole ground, the writ appeal and the writ petitions filed by the appellant are liable to be dismissed as not maintainable. 21. However, to give a quietus to the entire issue, we shall now proceed to discuss and decide the cases on merits also. This point is answered accordingly. Point No. 2 : 22. The learned senior counsel appearing for the appellant has argued that the appellant is not an 'importer' within the true meaning of Hazardous Waste (Management and Handling) Rules, 1989, which has been stiffly opposed on the part of the learned Additional Solicitor General of India. 23. To assess the case in hand, we shall now see the definition of 'import' and 'importer' provided for in Sections 2(23) and 2(26) of the Customs Act, 1962, which read as follows : "2(23): "import", with its grammatical variations and cognate expressions, means bringing into India from a plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooking orders filed by the appellant before the first respondent, which are available at page Nos. 19 and 28 of the typed set filed by the first respondent, would justify this. Therefore, we have no hesitation to hold that the appellant is an 'importer' within the parameters of law and thus, the arguments advanced contra on the part of the appellant are rejected. Concluding this aspect, now we shall proceed to discuss and decide the other aspects involved in the case. 28. It is to be pointed out that the Ministry of Environment and Forest, vide their Memorandum dated 24-3-2005, alerted the Customs Department, and all Pollution Control Boards, stating that representations have been received from Environmental agencies of UK and Netherlands regarding illegal shipments of recovered waste paper contaminated or mixed with garbage/municipal solid waste to India and instructed the Customs Authorities to inspect and ensure that at all the Ports of entry, only properly segregated paper, paperboard and paper product wastes enter the country, without being contaminated with municipal waste. 29. The Central Pollution Control Board, during their visit to the Tuticorin Port, recommended for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent have engaged the empty containers of the first respondent/Norasia Containers Lines Limited for their own purpose of sending the shipment, definitely, the first respondent is entitled to collect all the charges incidental thereto from the appellant and the third respondent. 33. Having committed an illegality and inventing a reason for sending the cargo to UAE instead of to USA i.e. to the 7th respondent/M/s. Evergreen Specialities, that too without offering any legally sustainable ground for doing the same, the appellant is fighting a losing battle, only with a mala fide intention of causing loss and damage to the first respondent, which should not be allowed to happen, in the interest of justice. 34. When the exporter of the cargo is at USA, the first respondent himself has acted as the master of it and when the goods destined to the first respondent are not the ones for which they have placed orders, but a sheer municipal waste, the first respondent should have compiled with the directions of the Customs Officials of India scrupulously and in their true letter and spirit. The appellant, having received an undesired cargo from M/s. Evergreen Specialities, should have shunte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the third respondent are trying to cheat the first respondent by denying him his due. 37. Another ground urged on behalf of the appellant is that when once the permission was accorded to unload the 35 containers at Tuticorin Port, neither the Customs officials nor the Port Trust nor the PSA Sical, who are the in-charge of the container yard at Tuticorin Port took any step to dispose of the consignment. When admittedly, the consignment is nothing but a municipal waste and disposing the same in any manner will cause environmental pollution and only with this purpose, the re-export of the cargo to the country of original was ordered by the Customs officials, the Customs officials and the Port officials have correctly not allowed any kind of disposal of such a waste in the Indian waters or soil, which cannot be allowed to be commented otherwise by the appellant, particularly with the sole aim of washing their hands at the cost and expenditure of others. For these reasons, the judgment of the Honourable Apex Court delivered in Union of India v. Sampat Raj Dugar [1992 (58) E.L.T. 163], relied on by the appellant has no application to the facts of the case on hand. 38. At this jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol Board are raising legally unsustainable grounds, only to escape the legal liability of paying the amounts to the first respondent, which would not be allowed to happen. 41. The first respondent has prayed in the writ petition to direct the authorities to take steps to destuff the cargo from his containers as provided under Sections 61 and 62 of the Major Port Trusts Act and Sections 30 and 48 of the Customs Act and release the empty containers to him. 42. Sections 61 and 62 of the Major Port Trusts Act, 1963 read as follows : "Section 61 : Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged.- (1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell by public auction or in such case as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner, such goods or so much thereof as, in the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no Port Gazette, in the official Gazette and also in at least one of the principal local daily newspapers, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction or by tender, private agreement or in any other manner : Provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board. (2) The notice referred to in sub-section (1) may also be served on the agents of the vessel by which such goods were landed. (3) If such owner or person does not comply with the requisition in the notice served upon him or published under sub-section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing sell by tender, private agreement or in any other manner after giving n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented." "Section 48 : Procedure in case of goods not cleared, warehoused or transshipped within thirty days after unloading.- If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transshipped within thirty days from the date of the unloading thereof at a customs station or within such further time a the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof ; Provided that - (a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time; (b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct." 44. On a conjoint reading of all the above provisions would make it clear that these provisions deal with the goods which can be sold and the procedure to be followed for disposing of goods which are not cleared, warehoused or transshipped. But, as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2008 are dismissed with a total cost of Rs. 50,000/- (Rupees Fifty Thousand Only) to be paid by the appellant, who is also the petitioner in both the writ petitions, to the Tamil Nadu Legal Services Authority, Chennai within a period of two weeks from the date of receipt of a copy of this order. (ii) The 2nd respondent/Union of India, represented by the Secretary to the Ministry of Finance, the 4th respondent/Chairman of the Tuticorin Port Trust, the 5th respondent/Commissioner of Customs and the 8th respondent/Central Pollution Control Board, Bangalore, are directed to take all steps to de-stuff the cargo from the containers of the first respondent at the cost and expenditure of the appellant and see that the first respondent re-exports the cargo to the seventh respondent himself that is the country of origin (iii) We make it clear that we are not interfering or dealing with the aspect of damages claimed by the first respondent from the appellant and others, since it is a matter to be decided by a civil forum, wherein already a suit in O.S. No. 7 of 2007 is pending. What we direct is that the containers of the first respondent should be handed over to him immediately by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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