COMMISSIONER OF CUSTOMS Vs. V.S.GOVINDAN

JUDGEMENT

(1.) The respondents in all the writ appeals have imported used tyres of different sizes from different countries across the globe and under bills of entry they claimed clearance of the goods for home consumption by paying necessary fee. But, the customs officials directed that the goods were to be examined by a Chartered Engineer. Accordingly, M/s.SGS India Private Limited, Chennai, who are the approved Chartered Engineer by the Government of India, Ministry of Commerce, inspected the consignments in the presence of Customs Appraiser and reported that the goods are used tyres and not reconditioned and not re-treaded and description found to tally with the invoice. Thereafter, the Additional Commissioner of Customs had taken up the case for adjudication and passed an order re-determining the value and confiscated the goods under Sections 111(d) and 111(m) of the Customs Act, but giving an option to redeem the goods on payment of fine under Section 125 of the Customs Act and also imposed penalty on the respondents under Section 112(a) of the Customs Act. According to the respondents, they have paid all the said sums and had requested the Deputy Commissioner of Customs (Docks) to release the goods. However, since the goods are not released, they have come forward to file the writ petitions praying to issue writs of Mandamus directing the authorities to release the goods. Along with the writ petitions, the importers have also filed Miscellaneous Petitions for the very same relief of directing the authorities to release the goods.

(2.) Before the learned single Judge it was contended by the Customs officials, by filing counter affidavits, that the Directorate of Revenue Intelligence received intelligence that old and used tyres imported by the respondents through Chennai Port are being supplied to the reprocessing units located in Karnataka and Gujarat after cutting into pieces and since the report of the said Chartered Engineer does not appear to bring out the actual facts since it has omitted to consider the year of manufacture (though with respect to Apollo branded tyres even the month and year of manufacture were found to explicitly mentioned in each of the tyres) and further some of the tyres were found to contain tubes in them, which was not at all mentioned in the said report, the imported tyres were seized under mahazars. According to the Customs authorities, in the event the imported tyres being found to be used pneumatic tyres either damaged or retreaded or having deep cuts or worn out, the same cannot find any use without resource recovery, recycling, reclamation and thereby would require specific licence issued by the Ministry of Environment upon satisfaction of the requirements thereto in terms of Serial No.B3140 of Schedule-B appended to the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2009 and therefore, the imported tyres have to be construed as hazardous waste and their import cannot be allowed but to be sent back to the country from where the same were imported.

(3.) It has also been stated that importing of used tyres by the importers is subject to various provisions of law governing the field and the guidelines issued for the import of the goods, based on the Basel convention on Transboundary Movement of Hazardous Wastes and their disposal cannot override the specific provisions of the enactments, which are forming an integral part of municipal laws and if there is a conflict between the guidelines prevailing in the international arena and the procedures established by the statutes enacted by the Government of India, the provisions of local laws would prevail. It was also contended that the release of the imported tyres, without proper investigation, could result in the dumping of hazardous wastes in India, contrary to the laws in force, regulating the field. According to them, even if the customs authorities concerned had passed an order, on completion of the adjudication process, the importers cannot claim total immunity from such investigation by the Directorate of Revenue Intelligence only on the ground that the adjudication process had been completed and that they had paid the customs duty, the redemption fine and the penalty imposed by the authorities concerned.