By TIOL News Service

MUMBAI, MAR 14, 2019: THE appellant had allegedly imported "Aluminium Scrap Twang" [CTH 76020012] but consequent upon testing, copper scrap druid of 6.01 MTs was found in one consignment and 10.81 MTs of copper scrap druid in another.

Based on the Test report obtained from M/s. Netel (India) Ltd., legal process ensued and adjudication order was passed directing confiscation of goods u/s 111of the Customs Act with option for redemption on payment of redemption fine of Rs.3,00,000/- against re-export only, as copper scrap druid was prohibited goods. Penalty of Rs.2 lakhs was also imposed u/s 112.

The Commissioner(A) while upholding the rest of the order brought down the redemption fine amount to Rs.1.5 lakhs considering the proportion of disputed copper scrap druid vis-à-vis "Aluminium Scrap Twang".

The importer is before the CESTAT.

It is submitted that copper scrap druid is not absolutely prohibited for import and, therefore, cannot be considered as restricted and hence order of clearance for home consumption could have been passed as against order of re-export; that M/s Sunalco Alloys Pvt. Ltd. who is holding a valid licence from Central Pollution Control Board and willing to buy the imported goods,they could have been permitted by the Customs authority to clear the same for home consumption upon bond volunteered to be executed by appellant; that in case of similar restricted goods viz. insecticides, pesticides etc. clearance for home consumption was permittedto buyer who had CPCB licence, on the basis of CBEC Circular no. 401/11/2011-Cus.III and JNCH Public Notice no. 94/2011. The appellant also placed reliance on the decision of the Bench in the case of Nathi Mal Rugan Mal [2018-TIOL-3335-CESTAT-MUM] and argued that condition of re-export imposed in the confiscation order under Section 125 of the Customs Act, 1962 would make the provision redundant as both confiscation with redemption fine in lieu of confiscation and re-export are two different actions and, therefore, the impugned order needs to be set aside.

The AR, while reiterating the reasoning and rationality of the order passed by the Commissioner (Appeals), argued that appellant had not only violated provisions of Hazardous and Other Waste (Management and Transboundary Movement Rules, 2018) in importing hazardous waste without "Central Pollution Control Board" licence/registration, it had also mis-declared the description and value of goods imported by it and for which reason interference by the Tribunal in the order of Commissioner (Appeals) is uncalled for.

The Bench considered the submissions and while concurring with the cited Tribunal order inter alia observed –

++ The plea of appellant that both the copper and aluminium are insulated for which it was difficult for it to distinguish the goods is not acceptable for the reason that no supplier would supply a high priced goods against an order of less priced goods for which the order passed by the Commissioner (Appeals) in imposing penalty for mis-declaration needs no interference.

++ It is also an admitted fact that copper scrap druid are not absolutely permitted for import and this import is regulated by the licence to be issued by the "Central Pollution Control Board", which appellant did not have at the time of import but going by the CBEC Circular and Public notice as described above, such goods can be cleared for home consumption to the interested buyer with approval of the importer.

Concluding that both confiscation and redemption cannot go with re-export condition, the CESTAT set aside the re-export condition and allowed the appellant to clear the goods in favour of M/s Sunalco Alloys Pvt. Ltd. after due verification and execution of bond as agreed to.

The appeal was partly allowed.

(See 2019-TIOL-776-CESTAT-MUM)