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19.Before us, the Revenue would strenuously contend that the decision of the Hon'ble Supreme Court in Athul Automations Private Limited (supra) would not be applicable to the facts of the present http://www.judis.nic.in case. We test the stand of the Revenue for its correctness. Before we proceed to go into the said decision, we may at the very outset point out that the decision in Athul Automations Private Limited (supra) was rendered by the Hon'ble Supreme Court while testing the correctness of the order passed by the Tribunal. In other words, the case proceeded through a normal route of adjudicatory process culminated in an order of the Tribunal which was challenged before the High Court and which order was challenged before the Hon'ble Supreme Court. In the said case, the respondents/importers during October-November 2019 imported certain consignments of MultiFunction Devices (Digital Photocopiers and Printers) (MFDs). The Commissioner of Customs held that the imports were in violation of the Foreign Trade Policy and Rule 15(1)(2) of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016. Redemption fine was imposed under Section 125 of the Act and consignment was released for re- export only; penalty was also imposed under Section 112(a) along with penalty under Section 114AA of the Act; and personal penalty on the Directors. Before the Tribunal, the importers did not contest that the import was in violation of the Foreign Trade Policy having been made without the necessary prior authorisation. The Tribunal held that MFDs http://www.judis.nic.in imported by them did not constitute “waste” under Rule 3(1)(23) of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 and had a utility life of 5 to 7 years, as certified by the Chartered Engineer. Release of the consignment was directed under Section 125 of the Act, as the importers therein were held to have substantially complied with the requirements of Rule 13 of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 read with Schedule VIII Entry 4(j) except for the country of origin certificate. The Tribunal further noticed that earlier, similar consignments of the importers and others have been released at Calcutta, Chennai and Cochin Ports upon payment of redemption fine.

20.The Revenue preferred appeal to the High Court which held that the MFDs correctly fell in the category of “other wastes” under Rule 3(1)(23) of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 read with Part B and Part D of Schedule II Item B1110 dealing with used MultiFunction Printer and Copying Machines. Further, the High Court held that MFDs were not prohibited but restricted items for import. The order for release of the goods was upheld subject to execution of a simple bond without sureties http://www.judis.nic.in for 90% of the enhanced assessed value with further liberty to the DGFT along with directions. The Revenue argued before the Hon'ble Supreme Court to sustain the order of the adjudicating authority and contended that the goods were rightly permitted to be cleared for re-export. The importers sought to sustain the order and direction issued by the High Court.