By TIOL News Service

NEW DELHI, JULY 10, 2013: THE appellant imported a consignment declared to be of Datagraphic Display Tubes for clearance of which they filed a bill of entry. After assessment of duty and payment of the duty assessed, the goods were examined and were ordered to be cleared out of customs charge. However, at this stage, the consignment was stopped by the SIIB Officers who conducted 100% examination and on examination the goods appeared to be old and used.

The goods were shown to a Chartered Engineer, on 02.03.2012, who after examining the goods on test check basis, gave an opinion that the goods are old and used and in some cases reconditioned and that it is difficult to comment on the extent of usage. Based on this opinion of the Chartered Engineer and keeping in view the Board's Circular No.27/2011-Cus. dt. 04.07.2011, the Department was of the view that these goods are e-waste whose import is restricted under Import Export Policy 2009-14 read with Board's Circular No. 27/2011-Cus. dt. 07.04.2011 and since no permission of the Ministry of Environment and Forests (MOEF) had been obtained for import for the purpose of re-use, the same would be liable for confiscation.

The goods, in question, were confiscated with an option to be redeemed for re-export on payment of redemption fine of Rs. 3,00,000/-. Besides this penalty of Rs. 1.50 Lakh was also imposed on the appellant. The Additional Commissioner in this order held that the goods being old and used Datagraphic Display Tubes are Hazardous Waste or e-waste and therefore prohibited for import in terms of CBEC Circular No. 27/2011-Cus. dt. 04.07.2011 read with Hazardous Waste (Management, Handing and Trans boundary Movement) Rules, 2008 and para 2.17 of the Foreign Trade Policy Volume-I.

The Commissioner (Appeals) vide order-in-appeal dt. 11.06.2012 while upholding the confiscation, reduced the redemption fine to Rs.20,000 /- and penalty to Rs. 30,000/-. Against this order of the Commissioner (Appeals), this appeal has been filed.

The Tribunal observed,

Hazardous Waste as defined in Rule 3(1) of Hazardous Waste (Management, Handing and Trans boundary Movement) Rules, 2008 made by the Central Government under section 6, 8 & 25 of the Environment Protection Act, 1986, means any waste which by reason of its physical, chemical, reactive, toxic, flammable, corrosive or explosive characteristics causes or is likely to cause, danger to health or environment, whether alone or in contact with other wastes or substances and shall include, among others, the wastes specified in Part A or part B of Schedule-III to these Rules in respect of import or export of such wastes in accordance with Rules 12 & 13 and 14. Under Rule 12, MOEF shall be the nodal Ministry to deal with the trans boundary movement of the Hazardous Wastes and to grant permission for transit of the Hazardous Wastes through any part of India. Under Rule 13, no import of the Hazardous Wastes from any country to India for disposal shall be permitted, the import of Hazardous Waste from any country shall be permitted only for recycling or recovery or re-use. Rule 14 mentions the conditions for import or export of certain categories of Hazardous Waste for recycling or re-use. Under Rule 14(1), import or export of Hazardous Wastes specified in Schedule-III shall be regulated in accordance with the conditions laid down in the said schedule and as per Rule 14(2), import of Hazardous Waste specified in part B of Schedule-III does not require "prior informed consent" of the country from which the waste has been imported. As per Schedule-III, Part B, the wastes listed therein having no star (*) can be imported into the country only with the permission of the MOEF. Rule 16 prescribes the procedure for obtaining permission from MOEF for import of wastes covered under Schedule-III. Rule 17(1) of these Rules states that export and import of Hazardous Waste from or into India shall be deemed illegal if it is without permission of Central Govt. in accordance with these Rules. Sub-Rule (2) of Rule 17 states that in case of illegal import of Hazardous Waste, the importer shall re-export the waste, in question, at his cost within a period of 90 days from the date of import and its implementation will be ensured by the concerned State Pollution Control Board.

Serial No. B1110 of part B of Schedule-III covers among other items "electrical & electronic assemblies (including printed Circular Board, electronic components & wires) destined for direct use and not for recycling or final disposal". This entry is without any star( *) and, therefore, these items would require permission of MOEF for import.

The Tribunal concluded,

The goods imported are electronic assemblies for direct re-use and, therefore, the same would be covered by Serial No. 1110 of Part B of the Schedule-III to the Hazardous Waste Rules, 2008, which as discussed above, would require prior permissible from Ministry of Environment & Forests and since these goods have been imported without permission from the Ministry of Environment & Forests, this import would have to be treated contrary to the restrictions imposed under Hazardous Waste Rules, 2008 and accordingly the same would be liable for confiscation under Section 111(d) of the Customs Act, 1962. And the same, in accordance with Rule 17(2) of the Hazardous Wastes Rules, 2008 have to be re-exported by the Importer at his cost. The e-waste (Management & Handling) Rules 2011 mentioned by the learned counsel for Appellant, as mentioned in Rule 2 of their Rules, apply to produces, consumers or bulk consumers involved in manufacture, sale purchase and processing of electrical and electronic processing of electrical equipment or components specified in their rules and as such, these rules do not apply to import of Hazardous Waste or e-waste, which is governed by Hazardous Waste Rules, 2008 only.

Therefore Tribunal did not find any infirmity in the impugned order. The appeal is dismissed.

(See 2013-TIOL-1037-CESTAT-DEL)