Custom, Excise & Service Tax Tribunal
Skylark Office Machines vs Cc Air Cargo Ch - Vii on 27 January, 2020
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT NO. III
Customs Appeal No.40593 of 2019
(Arising out of Order-in-Appeal Airport Cus.No.50/2019 dt. 11.02.2019 passed by
Commissioner of Customs (Appeals-I), Chennai]
M/s.Skylark Office Machines Appellant
10, Aziz Mulk 4th Street,
ThousandLights,
Chennai 600 006
VERSUS
Commissioner of Customs,
Chennai Aircargo Complex,
Chennai 600 027 Respondent
APPEARANCE :
Shri N. Viswanathan, Advocate For the Appellant Shri L. Nandakumar, AC (AR) For the Respondent CORAM :
HON'BLE MS. SULEKHA BEEVI. C.S., MEMBER (JUDICIAL) HON'BLE SHRI ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) DATE OF HEARING : 27.01.2020 DATE OF DECISION : 27.01.2020 FINAL ORDER No.__40073/2020___ Per : ANIL G. SHAKKARWAR The present appeal is directed against Order-in-Appeal No.50/2019 dated 11.02.2019 passed by Commissioner of Customs (Appeals-I), Chennai.2
Appeal No.C/40593/2019
2. Brief facts are that the appellant imported 200 numbers of used ventilators and filed Bill of Entry dt.10.01.2018 for home consumption. The appellant declared the goods to be old and used ventilators with all standard accessories. The same were subjected to first check examination. The Customs officers took help of Chartered Engineer to examine the goods imported. The Chartered Engineer certified that the goods were as declared in the Bill of Entry. It appeared to Revenue that in terms of provisions of sub-rule (6) of Rule 12 of Hazardous and Other Wastes (Management, Handling and Transboundry Movement) Rules 2016 used critical care medical equipment for reuse were declared as prohibited goods for import into India under Schedule VI to the said Rules and since imported goods were used critical care medical equipments the same were not eligible to be cleared for home consumption. Therefore, through an Order-in-Original dt. 11.12.2018 original authority confiscated the goods and allowed to redeem the same on payment of redemption fine of Rs.3 lakh and ordered to re- export the same and redeem the same and also imposed penalty on the appellant to the tune of Rs.1 lakh under the provisions of Section 112
(a) of the Customs Act, 1962. Aggrieved by the said order, the appellant preferred appeal before Learned Commissioner (Appeals). Ld.Commissioner (Appeals) decided the said appeal through impugned Order-in-Appeal wherein he did not interfere with the said OIO dt. 11.12.2018. Aggrieve by the said OIA, the appellant is before this Tribunal.
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Appeal No.C/40593/2019
3. Heard Shri N. Viswanathan, Ld. Advocate on behalf of the appellant. Ld. counsel has submitted that the goods do not come within the ambit of waste as defined under sub-rule (38) of Rule 3 of Hazardous and Other Wastes (Management, Handling and Transboundry Movement) Rules 2016 and that Hon'ble Madras High Court in the case of Shrishti Digital Solution - 2013 (298) ELT 197 (Mad.) in para-11 has held that Basel Convention and Hazardous Wastes (Management, handling and Transboundary Movement) Rules, 2008 has no relevance to the goods in question which were complete machines and submitted that said goods were second hand digital multi function print and copying machines. He has further submitted that impugned goods were not for reuse but for original use.
4. Heard Ld. A.R Shri L. Nandakumar. Shri Nandakumar has submitted that under Schedule VI attached to Hazardous and Other Wastes (Management, Handling and Transboundry Movement) Rules 2016 at Basel No.B1110 used critical care medical equipment for reuse was included. He has further submitted that under the said rules under sub rule (26) of Rule 3 reuse has been defined and reuse includes original use. He has further submitted that under sub-rule (6) of Rule 12 of said rules, import of hazardous and other wastes specified in Schedule VI is not permitted.
5. We have carefully gone through record of the case and submissions made from both sides. On perusal of said Schedule VI of 4 Appeal No.C/40593/2019 the said Rules, we note that at Basel No.B1110 used critical care medical equipment for reuse are included. We note that goods imported by the appellant and which are impugned goods are ventilators which through common knowledge, we note that the same are critical care medical equipments. The appellant has declared them as used ventilators. Further reuse includes original use. Therefore, we are satisfied that imported goods which are subject matter of this appeal are covered by Basel No.B1110 and are covered by said Schedule VI. We therefore do not agree with the learned counsel for appellant that the impugned goods are covered by Schedule III to the said Rules 2016. We further note that Hon'ble Madras High Court was dealing in the case of Shrishti Digital Solution (supra) with import of second hand digital multi function print and copying machines and ruled that the said rules have no relevance to the goods in question which were complete machines. Since whether complete or incomplete machine is not the issue in the present appeal, we do not find ruling by Hon'ble Madras High Court in the above stated case of Shrishti Digital Solution to be applicable in the present case. We are satisfied that the impugned goods are covered by Schedule VI of the said rules and as per Rule (6) of Rule 12 of the said rules, import of the same is not permitted. We further note that original authority has allowed the appellant to re-export the same. We note that on confiscation the goods becomes property of Government. The original authority has also given option to redeem the goods for exportation. Under the provisions of Section 125 of Customs Act, 1962 the option to redeem the same is provided. 5
Appeal No.C/40593/2019 However, the said option cannot be compelled. Therefore, if the appellant does not choose to redeem the goods then the goods shall remain in India and cannot be re-exported. We therefore modify the impugned order and set aside confiscation of goods so as to facilitate re-export of impugned goods. Once the confiscation is set aside, the question of imposition of redemption fine does not arise. Further, on setting aside confiscation, imposition of penalty also does not arise. We therefore set aside confiscation of goods, imposition of redemption fine and imposition of penalty and direct the appellant to re-export the goods in above terms. Thus, the appeal is partially allowed.
(Operative part of the order pronounced in court ) (Sulekha Beevi C.S.) Member (Judicial) (Anil G.Shakkarwar) Member (Technical) gs 6 Appeal No.C/40593/2019