S.B. INTERNATIONAL Vs. COMMISSIONER OF CUSTOMS (IMPORT)

JUDGEMENT

(1.) THE appellant had filed a Bill of Entry on 22.9.2008 for clearance of 145.65 MTs of what was declared to be 'Heavy Melting Scrap' (HMS for short) and valued at USD 400 per MT. The consignment was imported from Kuwait, from where the goods were shipped in 8 containers. The containers were scanned at the Indian port, whereupon suspicions images were found, which made the Customs authorities refer the case to SIIB (Import). On physical examination of the goods under SIIB's supervision, 310.5 kg of plastic scrap was found alongwith HMS. The SIIB (Import) reported that the plastic waste/scrap found in the above containers was a hazardous waste listed under the Hazardous Waste (Management and Handling) Rules, 1989 and that import of such waste from any country to India was not permissible as per Rule 11(1) of the said Rules. It was also reported that the above import of hazardous waste without prior permission of the Government amounted to illegal traffic under Rule 15 of the said Rules and hence the material should be shipped back to the exporting country or disposed of in terms of Rule 15(2) of the said Rules. The importer, in a letter dated 10.11.08, requested for release of the HMS and agreed to re -export the hazardous waste at their cost. They also waived show -cause notice and personal hearing, and requested for early decision. They also agreed to pay fine, penalty and duty.

(2.) THE learned Commissioner of Customs (Import) ordered confiscation of the entire consignment consisting of 145.65 MT of HMS including 310.5 kg of hazardous waste, totally valued at Rs. 25,13,974/ -, under Section 119 read with Section 111(d) of the Customs Act read with Section 3(3) of the Foreign Trade (Development and Regulations) Act, 1992 and the Hazardous Waste (Management and Handling) Rules, 1989. Option for redemption on payment of a fine of Rs. 5.00 lakhs was given under Section 125 of the Customs Act. The Commissioner also ordered segregation of the plastic waste from HMS and its re -export within 30 days. HMS weighing 140.34 MTs was allowed to be cleared for home consumption on payment of line and penalty. Further a penalty of Rs. 2.00 lakhs was imposed on the importer under Section 112(a) of the Customs Act.

(3.) THE learned Consultant for the appellant submits that the entire consignment consisting of 140.34 MTs of HMS and 310.5 kg of hazardous waste ought not to have been confiscated on the ground that the negligible quantity of hazardous waste was also contained in the consignment. It is submitted that the department has no case that HMS weighing 140.34 MTs imported by the appellant was otherwise liable to confiscation. It is pointed out that the goods were redeemed on payment of fine etc and hazardous waste re -exported. The learned Consultant has also submitted that the fine of Rs. 5.00 lakhs and the penalty of Rs. 2.00 lakhs imposed by the learned Commissioner are extremely harsh in the circumstances of this case.