Kerala High Court
M/S. Atul Automations Pvt. Ltd vs The Commissioner Of Customs
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938
W.P(C).No.213 of 2017 (B)
--------------------------
PETITIONER(S):-
---------------
M/S. ATUL AUTOMATIONS PVT. LTD.
8, BENTINCK STREET, KOLKATA-700001,
REPRESENTED BY ITS DIRECTOR-SHRI.KETAN KAMDAR.
BY ADVS.SRI.JOSEPH KODIANTHARA (SENIOR ADVOCATE)
SRI.P.A.AUGUSTIAN
SRI.M.A.BABY
SMT.LINDA.M.J.
RESPONDENT(S):-
--------------
1. THE COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN-682009.
2. THE ASSISTANT COMMISSIONER OF CUSTOMS,
(IMPORT APPRAISING GROUP), CUSTOM HOUSE,
WILLINGDON ISLAND, COCHIN-682009.
3. THE ASSISTANT COMMISSIONER OF CUSTOMS (SIIB),
CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN-682009.
R1 TO R3 BY STANDING COUNSEL SRI.SREELAL N. WARRIER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-01-2017, ALONG WITH WPC. 1354/2017-T, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No.213 of 2017 (B)
--------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:-
-------------------------
EXHIBIT P1 TRUE COPY OF THE LIST OF THE 24 CONSIGNMENTS IMPORTED BY
THE PETITIONER WITH ALL DETAILS.
EXHIBIT P2 TRUE COPY OF BILL OF LADING AND INVOICES.
EXHIBIT P3 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.277/2016
DATED 21-09-16.
EXHIBIT P4 TRUE COPY OF CLARIFICATION F.NO.01/93/180/AM-10/PC-2(B)/282
DATED 20-05-13 ISSUED BY CENTRAL BOARD OF CUSTOMS & EXCISE.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 02-06-16 IN C.A.NOS.2/2011 TO
11/2011 & 13/2011.
EXHIBIT P6 TRUE COPY OF THE CITATION REPORTED IN
2013(298) E.L.T. 197(MAD.)
EXHIBIT P7 TRUE COPY OF THE CITATION REPORTED IN
2015(325) E.L.T. 103(MAD.)
EXHIBIT P8 TRUE COPY OF THE CITATION REPORTED IN
2015(316) E.L.T. 199(MAD.)
EXHIBIT P9 TRUE COPY OF THE CITATION REPORTED IN
2016(336) E.L.T. 19(MAD.)
EXHIBIT P10 TRUE COPY OF THE CITATION REPORTED IN
2016(340) E.L.T.27 (P&H).
EXHIBIT P11 TRUE COPY OF THE VALUATION REPORT PREPARED BY
CHARTERED ENGINEER.
EXHIBIT P12 TRUE COPY OF THE HAZARDOUS RULES, 2016 ALONG WITH
SCHEDULES AND FORMS.
EXHIBIT P13 TRUE COPY OF THE E-WASTE MANAGEMENT RULES, 2011.
EXHIBIT P14 TRUE COPY OF THE RESTRAINT ORDER F.NO.AP/INT/46/SIIB.CUS
DATED 10-11-16.
EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 09-11-16.
EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 10-11-16.
EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 15-11-16.
EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 30-11-16.
WP(C).No.213 of 2017 (B) - 2 -
EXHIBIT P19 TRUE COPY OF THE REPRESENTATION DATED 08-12-16.
EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED 21-12-16.
EXHIBIT P21 TRUE COPY OF THE REPRESENTATION DATED 23-12-16.
EXHIBIT P22 TRUE COPY OF THE REPRESENTATION DATED 24-12-16.
EXHIBIT P23 TRUE COPY OF THE LETTER DATED 23-12-16.
EXHIBIT P24 TRUE COPY OF THE CITATION REPORTED IN
2003 (155) E.L.T. 417(SC)
EXHIBIT P25 TRUE COPY OF THE ORDER-IN-ORIGINAL
NO.KOL/CUS/ADC/809/ADJN (PORT)/2016 DATED 26-10-16.
EXHIBIT P26 TRUE COPY OF THE LETTER DATED 24.12.16.
EXHIBIT P27 TRUE COPY OF THE LETTER DATED 02.12.16.
EXHIBIT P28 TRUE COPY OF THE ORDER-IN-ORIGINAL
NO.KOL/CUS/ADC/898/ADJN (PORT)/2016 DATED 29-12-16.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
-------------------------------------------------------------
W.P.(C).Nos.213 of 2017-B & 1354 of 2017-T
--------------------------------------------------------------
Dated this the 23rd day of January, 2017
JUDGMENT
The petitioners are concerned with the import of Multi-Functional Devices (printing and copying machines) [for brevity "MFDs"], which, on import, have been detained by the respondents. It is alleged by the petitioners, that they were directed to re-export the goods to the country from which the import was made.
2. The learned Senior Counsel has specifically referred to Exhibit P12 notification, G.S.R.395(E) dated 04.04.2016, published by the Ministry of Environment, Forest and Climate Change [for brevity "MoEF&CC"]; which is the Hazardous and Other Wastes [Management and Transboundary Movement] Rules, 2016. Though MFDs were earlier freely importable, later on, they were made a restricted WP(C) Nos.213 of 2017 & - 2 - 1354 of 2017 commodity as per the EXIM Policy. In fact, there was a dispute as to whether MFDs would come within the category of "hazardous waste", which, according to the petitioners, was decided in their favour by Exhibit P6 judgment of the High Court of Judicature at Madras and the same has also been incorporated under Exhibit P12, the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, specifically Rule 13(2).
3. Rule 13(2) refers to the "other wastes" as scheduled in Part D of Schedule III, for which there is no requirement of permission from the MoEF&CC; but, however, requires furnishing of information as per Form 6 to the Customs authorities, accompanied with the documents stated in clauses
(a) to (c) of sub-rule (2) of Rule 13 and also those listed in Schedule VIII. The MFDs admittedly have been included in Part D as applicable in the Rules and the requirement under WP(C) Nos.213 of 2017 & - 3 - 1354 of 2017 Schedule VIII is as herein below:
SCHEDULE VIII [See rules 13(2) and 13(4) List of documents for verification by Customs for import of other wastes specified in Part D of Schedule III Sl. Basel Description List of Documents No. No. of other wastes 1 2 3 4
(j) Used (a) The country of Origin Certificate along with bill of multifunction lading and packaging;
print and (b) The certificate issued by the inspection agency as copying certified by the exporting country or the inspection and machines certification agency approved by Directorate General (MFDs) Foreign Trade (DGFT) for functionality, having residual life of not less than five years and serial number;
(c) Extended Producer Responsibility-Authorisation under e-waste (Management and Handling) Rules, 2011 as amended from time to time as Producer;
(d) The MFDs shall be for printing A3 size and above;
(e) An acknowledged copy of the annual return filed with concerned SPCB for import in the last financial year.
4. The learned Senior Counsel submits that goods have been kept in the Bonded Warehouse from October, 2016 and pending adjudication, the same should be provisionally WP(C) Nos.213 of 2017 & - 4 - 1354 of 2017 released on the terms as available in Exhibit P3, issued from the very same Commissionerate. It is submitted that the terms of redemption fee and penalty would also be complied with.
5. The learned Standing Counsel for the Department, however, points out that it is not a question of redemption fee or penalty that assumes significance in the case, since the concern is of the waste disposal within the country. The Rules as framed at Ext.P12 seek to control the import of used goods, effectively turning this Country into a dumping ground. No import of such goods could be made without complying with the specific conditions indicated in the Rules. Without admitting, it is submitted that even if the MFDs are not included in the "hazardous waste", the Rules at Exhibit P12 specify the equipment to come under "other wastes", for which there is a requirement of furnishing the information as per Form 6 to Customs authorities, which should be accompanied with the WP(C) Nos.213 of 2017 & - 5 - 1354 of 2017 documents as specified in sub-rule (2) of Rule 13 and those listed out in Schedule VIII, which are extracted hereinabove.
6. The request for direction to effect provisional release is objected on the ground that there would be absolutely no possibility of recovering such MFDs if it goes out of the hands of the petitioner; in which event the problem of accumulating waste which is sought to be averted; would only be compounded. It is also submitted that the Foreign Trade Policy of the Ministry of Commerce and Industry restricts import of second -hand goods unless otherwise it is authorised, which authorisation, the petitioner admits is not available.
7. The absence of an authorisation is sought to be got over by the petitioner, by expressing willingness to pay the fine and penalty; in which circumstance there should be release of the goods, is the argument. It is also contended that there could be no re-export of the goods, as has been threatened as of now, WP(C) Nos.213 of 2017 & - 6 - 1354 of 2017 especially when so found in Exhibit P6 judgment of the High Court of Judicature at Madras. It is also submitted that Exhibit P11 judgment of the Punjab and Haryana High Court speaks of release of the goods by redemption and on remittance of redemption fee and penalty if the goods are restricted; and when the import is absolutely prohibited, then there could be re-export.
8. In this context, Rule 15 of Exhibit P8 is pointed out by the learned Standing Counsel, to contend that export and import of goods of any specific description into India should be deemed to be illegal if the same is without permission of the Central Government and not in accordance with these Rules. In such circumstance, as of now this Court is not inclined to release the goods placing reliance on the decisions cited. Especially since the original authority has not considered the issue and the impact of the declarations made by the different High Courts on the facts of the instant case. The issue cannot WP(C) Nos.213 of 2017 & - 7 - 1354 of 2017 be dealt with on the basis of the provisions in the Customs Act alone. There are specific rules provided for import of hazardous waste and other wastes, which requires authorisation from authorities and import of second hand goods is specifically prohibited by the Foreign Trade Policy brought out by Government of India, Ministry of Commerce and Industry, Department of Commerce. In the context of what has been stated above by the Department, this Court is not inclined to grant an order for provisional release.
9. However, it goes without saying that the adjudicating authority would have to consider the issue and adjudicate on the same in a time bound manner especially when the petitioner is aggrieved by the cost incurred in keeping the goods in the Bonded Warehouse. The jurisdictional adjudicating authority shall, after hearing the petitioners, pass an order at any rate within three months from today. The observations made WP(C) Nos.213 of 2017 & - 8 - 1354 of 2017 hereinabove are only prima facie in nature and the consideration shall be made untrammelled by the observations herein.
The writ petitions are disposed of, without any observation on the merits leaving open the question to be decided by the original authority.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]