Page 223 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] PACE INDIA v. COMMISSIONER OF CUSTOMS, BANGALORE 445

der is not sustainable in law as the same has been passed without properly ap-
preciating the facts, documentary evidence on record, without seeing the statuto-
ry provisions of the Customs Act and the Hazardous and other Wastes (Man-
agement & Transboundary Movement) Rules, 2016. He further submitted that
the order for re-export the goods on payment of redemption fine within 30 days
and/or disposal of the goods at the cost of the appellant is in excess of the statu-
tory provisions and hence, the same is in excess of jurisdiction conferred under
the statute. He also submitted that the provisions of the Customs Act does not
provide for re-export of the goods imported on payment of redemption fine and
hence, the adjudication order goes beyond the statutory provisions of the Cus-
toms Act, 1962. He further submitted that allegation of misdeclaration and erro-
neous classification of the impugned goods is not tenable in law because the ap-
pellant who is a manufacturer of solar panels and hence placed order on the for-
eign supplier for supply of small solar cells for the manufacture of solar panels
and accordingly the foreign supplier supplied the impugned goods along with
invoices and packing list etc. and thereafter the appellant filed Bills of Entry for
assessment and clearance of goods for home consumption by declaring the im-
pugned goods as small solar cells based on the work orders, supplier’s invoices,
packing list etc. and also filed all the required documents required for assess-
ment. He further submitted that both the lower authorities have proceeded to
decide the classification of the impugned goods as ‘scrap/waste solar cells’ solely
on the ground that the imported goods are found to be broken solar cells of dif-
ferent sizes. He also submitted that the appellant imported the small solar cells
for the purpose of manufacture of various solar applications like solar lantern,
street lights, solar lights, solar lamps, signal lights etc. Further the appellant also
relied upon the technical write up of the Cut Solar Cells which clearly shows that
the small solar cells can be used for various solar applications depending upon
the size starting from 3w to 350w. He also submitted that cut/small solar cells
are used for various solar applications in order to reduce cost of solar photovol-
taic modules; merely because the imported small solar cells are found to be in
small size/breaking condition, that itself cannot be the determinitative factor to
decide/change the classification of the impugned goods. He further submitted
that the imported solar cells are fragile in nature and the goods have been mis-
handled during the course of investigation or during the transit and the same
resulted in damage to the imported goods, for which appellant cannot be held
responsible. He further submitted that out of 13599.5 kgs, only about 70 kgs. of
silicon wafer are found to be in broken condition and hence, entire quantity of
13599.5 kgs cannot be held as waste and scrap. He also submitted that the fact of
breaking of imported consignment due to mishandling is further corroborated by
the report of the IISc dated 8-8-2017. It is pertinent to note that the samples
drawn during the course of investigation were sent in envelope cover which
clearly shows the manner of investigation conducted by the investigating author-
ity in the present case. He further argued that Schedule III of the Hazardous and
other Wastes (Management & Transboundary Movement) Rules, 2016 covers the
Hazardous Waste and Other Waste which can be imported with or without per-
mission. However, in the said Schedule, nowhere it covers the small solar cells or
waste/scrap of solar cells. Further the Hazardous Waste and other waste listed in
Schedule III can be imported after prior permission and hence, the imported
small solar cells or waste/scrap of solar cells cannot be considered as prohibited
for import. He also referred to the Press Information Bureau, Ministry of Envi-
EXCISE LAW TIMES  1st May 2020  223