ITC LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) In all these matters, the petitioners seek to review the common order passed by us on 21.11.2008 in Writ Appeal (MD) No. 721 of 2007, Writ Petition (MD) No. 5989 of 2008 and Writ Petition (MD) No. 5994 of 2008, while sitting at the Madurai Bench of this Court. Though all these matters are originally filed before the Madurai Bench of this Court, for the sake of convenience, they are ordered to be posted at the Principal Seat, before this Bench, which has passed the orders in the writ appeal and writ petitions. In this way, these matters are posted before us and since all the matters are interconnected with each other, common arguments were advanced and are being disposed of by this common order.

(2.) For the sake of convenience and easy reference, the parties are referred to as per their ranking in Review Application (MD) No. 86 of 2008.

(3.) A brief background of the cases on hand is that the petitioner/ITC Limited has placed an order with the seventh respondent/Evergreen Specialities Inc. for supply of mixed waste papers single stream on 10.8.2005. The petitioner has filed two Bills of Entry bearing Nos. 371549, dated 13.9.2005 and 372089, dated 20.9.2005 through their agent Indev Shipping Services Limited/the third respondent for clearance of 40 numbers of containers, declaring the cargo as 'waste paper'. The goods on de-stuffing and on examination by the Customs on 22.9.2005, were found to be waste paper mixed with used plastic carry bags, pet bottles, used clothes, shoes and other household articles, used soft drink metal cans leaching out dirty liquid and emitting foul smell, thus falling within the definition of 'municipal waste' under Chapter 38 Note 4 of the First Schedule to the Customs Tariff Act and hazardous waste having characteristics of eco-toxic and infectious substances to be dealt with under the provisions of the Hazardous Wastes (Management and Handling) Rules, 1989. Therefore, the Customs officials issued a show-cause notice dated 26.9.2005 to the importer/review petitioner and the petitioner has sent a letter dated 27.9.2005 stating that the subject import consigned to them do not contain waste-paper and is in contravention of their order conditions and therefore, they have rejected the material 100% and informed the supplier and by the reply letter dated 5.10.2005, the petitioner has requested permission for re-export of the entire cargo of 40 containers, which was accorded by the Commissioner of Customs, by the Note order dated 7.10.2005, ordering immediate re-export of subject cargo in 40 containers. Thereupon, the petitioner/appellant requested the first respondent/M/s.Norasia Container Lines Limited to allot forty numbers of 40 feet empty containers to stuff their cargo to be shipped from Tuticorin to Ajman and on such allotment of containers by the first respondent, the petitioner took the 40 containers to the warehouse and did the stuffing, loading and sealing of the containers in the presence of the Customs officials and handed over the sealed stuffed container for shipment and declaring the cargo as 'mixed waste paper', the 40 containers were sent to Ajman. The customs authorities at Ajman, UAE, examining five containers out of 40, found that the said cargo was mis-declared in the Bill of Lading and accordingly directed the first respondent, through their agents in UAE, to re-export the containers back to shipment port in India or else to face necessary action.