The Kolkata bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) set aside the penalty under Section 114 AA, ruling that there was no violation of statutory provisions regarding pollution and hazardous materials in the imported consignment of waste paper.
The appellants have filed the present appeal being aggrieved by the Order-in-Appeal No. KOL/CUS (Port)/KS/656/2023 dated 28.08.2023 passed by Ld. Commissioner of Customs (Appeals), Kolkata. The Commissioner (Appeals) vide the impugned order has held that the examination of the imported goods (declared as waste paper) have established that the said consignments of waste paper were mixed with hazardous wastes that are prohibited for import and has therefore upheld the Adjudicating Authority’s order whereby the appellants have been held liable to consequences in law for import/attempted imports of goods that are prohibited. In the adjudication and appellate proceedings, as the imported goods were found to be contrary to the self-declaration tendered by the appellant for the purpose of assessment and were found mixed with hazardous wastes, the goods have been held liable to confiscation and therefore confiscated.
Mr. Rahul Dhanuka representing the appellant submitted that paper waste was freely importable and therefore the importer had furnished all requisites, as required under Rule 13(2) and Rule 18(2) of the HOWR, 2016 along with the Bills of Entry. It was therefore his case that in disregard of the aforesaid Rules, the Customs officers examined the said 65 containers under the subject 11 Bills of Entry by completely de-stuffing the same and submits that despite finding no discrepancy about the importation regarding statutory compliances with the provisions of Customs Act, Foreign Trade Policy, Handbook of Procedures, HOWR 2016 the department chose not to release the consignment.
The bench felt that the subject cargo can be jointly re-examined afresh by the department in coordination with SPCB before initiating any further action in the matter. However the said option is completely at the discretion of the appellant who will be required to file a written undertaking with the jurisdictional Commissioner to the effect of consent thereto and to abide by the consequence of such reexamination. The appellant will be required to bear the cost incurred the re-examination of the goods. Such an option, if any, will be required to be exercised by the appellant within four weeks of the pronouncement of the order.
Further observed that the case does not warrant imposition of penal liabilities upon the appellant under Section 112(a) and/or 112(b) as well as 114AA of the Customs Act 1962. Further therefore set aside the penal liabilities so imposed on the appellant. Under the circumstances, if at all the department had a grouse against the said certificates for not indicating the contents truthfully, it was for the department to proceed against such certified bodies and take appropriate action in law against them including de-recognition and cancellation of their certification with the department concerned.
The two member bench of the tribunal comprising R. Muralidhar ( Judicial member) and Rajeev Tandon ( Technical member) holding that there was no violation of statutory provision of Pollution and Hazardous materials in the imported consignment, the confiscation ordered in the impugned Order-in-Appeal, would be treated as set aside. Accordingly, the appeal was disposed of.
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