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2019 Supreme(UK) 162
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAMESH RANGANATHAN, R.C. KHULBE, JJ.
Multiwal Duplex Pvt. Ltd. - Appellant
Versus
Commissioner of Customs and Central Excise - Respondent
Customs Appeal No. 01 of 2017
Decided On : 02-01-2019
Advocate Appeared:
For the Appellant : Mr. Rahul Consul, learned counsel
For the Respondent: Mr. Shobhit Saharia, learned senior standing counsel
Import of goods without proper declaration and clearance is liable for confiscation and penalty under the Customs Act.
Headnote:
Customs Act - Import of Plastic Waste - Section 130 of the Customs Act 1962 - [Section 130 of the Customs Act 1962] - The judgment discusses the import of plastic waste without declaration and clearance, leading to confiscation under various clauses of Section 111 and Section 119 of the Customs Act. The court upheld the confiscation and penalty imposed due to the non-declaration and import of toxic plastic waste.
Fact of the Case:
The appellant imported mixed paper waste, which was found to contain a significant quantity of toxic plastic waste. The goods were seized and confiscated under the Customs Act, and a penalty was imposed.
Finding of the Court:
The court found that the import of plastic waste without declaration and clearance led to confiscation under relevant sections of the Customs Act. The appellant's argument of being unaware of the content was dismissed, and the court upheld the confiscation and penalty imposed.
Issues: Import of goods without declaration, liability for confiscation, and penalty under the Customs Act.
Ratio Decidendi: The court held that the import of goods without proper declaration and clearance is liable for confiscation and penalty under the Customs Act. The appellant's lack of awareness of the content was not considered a valid defense.
Final Decision: The appeal was dismissed, and the confiscation and penalty imposed under the Customs Act were upheld.
RAMESH RANGANATHAN, J.
1. Delay of one day in filing Application No.1572 of 2018, to restore the appeal to file, is condoned; and the appeal is restored to file. This appeal is preferred, under Section 130 of the Customs Act 1962, against the order passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi in Appeal No.C/188/2008-CU(DB) dated 21.01.2015.
2. The appellant herein imported goods vide Bill of Entry No. 587/06, dated 16.06.2006 for clearance of 98.848 M.T. of mixed paper waste. The subject goods were examined, in the presence of the authorized representative of the Customs House Agent (CHA), which revealed the net weight to be 96.65 M.T. out of which 19.83 M.T. was used plastic waste, and the remaining 76.82 M.T. was used paper collected as road sweepings.
3. The plastic content, in the imported mixed paper waste consignment, was neither declared by the appellant in the Bill of Entry, nor did they submit any licence issued by the office of the Directorate General of Foreign Trade (DGFT) for import of plastic waste. A representative sample, of the plastic content, was drawn in the presence of the authorized representative of the CHA and sent to the Central Institute of Plastic Engineering & Technology, Lucknow (CIPET) for testing; the subject goods were seized on 12.09.2006, under the Customs Act, on the ground that the goods were liable for confiscation as the import of waste plastic of the kind was regulated in the manner provided in the Public Notice No. 392(PN) 92-97 dated 01.01.1997 issued by DGFT; and the appellant was not able to show that these goods were imported in accordance with the said Public Notice.
4. The test certificate dated 20.09.2006, issued by CIPET, Lucknow, revealed that the goods were Polyethylene Terephthalate and toxic. The appellant was informed, by letter dated 17.10.2006, of the afore-said test certificate, in reply to which the appellant sought re-testing vide his letter dated 23.10.2006. A second test was conducted by CIPET, Lucknow and, vide test certificate No.821 dated 12.12.2006, the tested goods were held to be ‘Polyethyelne Terephthalate, Non-food grade’. The used plastic waste was confiscated, and the used papers collected as road sweepings, though confiscated, was allowed to be redeemed on payment of fine of Rs.4 lakhs. Penalty of Rs.6 lakhs was also imposed, the plastic waste was confiscated in terms of Clauses (d), (e), (f), (i), (l) and (m) of Section 111 of the Customs Act, 1962, and “used papers collected as road sweepings” was confiscated under Sub-section (m) Section 111 of the Customs Act.
5. In the order under appeal, the Tribunal observed that, since import of plastic waste was contrary to the conditions of import thereof, it was liable for confiscation; as a consequence thereof used paper, collected as road sweepings, was also liable for confiscation under Section 119 of the Customs Act, namely, the goods used for concealing the smuggled goods, i.e. used plastic waste; Clause 7 of the contract with the suppliers provided for final load port quality inspection on seller’s account by survey or as mutually agreed upon; the contract stipulated for pre-shipment inspection, of the goods imported, to ascertain whether they were as per the declaration in the Bill of Entry; consequently, the appellants could not fully absolve themselves of responsibility to ensure that the goods imported were as per their declaration in the Bill of Entry; and there was no infirmity in the earlier order passed on 10.12.2007. Both the appellate order and the primary order dated 11.05.2007 were upheld.
6. Before us, Mr. Rahul Consul, learned counsel for the appellant, would submit that, it is only if it is established that the appellant intended to import goods without obtaining necessary permission from the DGFT, could these goods be subjected to confiscation; for the fault of the exporter the appellant, who has imported the goods, cannot be held liable for payment
