Page 224 - ELT_3rd_1st May 2020_Vol 372_Part

446 EXCISE LAW TIMES [ Vol. 372

ronment and Forests of the Government of India vide their decision dated 5-3-
2016 has re-categorised the white industries which do not require environment
clearances and SI.Nos.34 and 35 of the list of White category of Industries covers
solar industries. He further submitted that the KSPCB vide its Notification dated
14-7-2017 has also categorized the solar industry under the category of White
Industries. In view of this, the Learned Counsel submits that there is no require-
ment of prior permission from the Pollution Control Board or Ministry of Envi-
ronment for import of cut solar cells. He also referred to the CPCB report dated
5-9-2017 which has observed that the solar cells imported by the appellant does
not appear in any of the Schedule of the Hazardous and other Wastes (Manage-
ment & Transboundary Movement) Rules, 2016 and further the officers of
KSPCB, who actually visited the spot and conducted physical verification, vide
their report dated 31-10-2017 has clearly observed that the cut pieces of solar cells
of silicon wafers may be used for various solar applications like assembling of
solar lantern, solar light etc. The Learned Counsel also submitted that the obser-
vation of the Pollution Control Board will have more binding effect than the re-
port of IISc. which is ambiguous. It is clear that the imported goods cannot be
considered as hazarduous waste/scrap and secondly the question of obtaining
prior permission from the Pollution Control Board does not arise. He also sub-
mitted that the small solar cells are not covered under any of the Schedule to the
Environment (Protection) Act read with the Hazardous and other Wastes (Man-
agement & Transboundary Movement) Rules, 2016. Therefore, there is no merit
in the claim of the Department trying for confiscation of the imported goods by
holding them as hazardous waste. He also submitted that both the authorities
have relied upon the statement of the Managing Partner and the Customs Bro-
kers Firm but the copies of their statements were not supplied to the appellant
and cannot be relied upon in the absence of corroborative evidence. He further
submitted that the burden is always on the Department in the matter of classifi-
cation of the goods and in the present case, the Department has not made any
effort to prove the same with documentary evidences except proceeding to clas-
sify the impugned goods as waste/scrap of solar cells solely considering the
breakage of some of the imported goods without considering the nature of usage
of the said goods. For this submission, he relied upon the following decisions :-
(i) Singhla Sales Corporation Pvt. Ltd. v. CC, Amritsar [2002 (141) E.L.T.
806 (Tri. - Del.)]
(ii) MP Dyechem Industries v. CC, Bhopal [2002 (139) E.L.T. 656 (Tri. -
Del.)]
(iii) Hindustan Ferodo Ltd. v. CCE [1997 (89) E.L.T. 16 (S.C.)]
(iv) UOI v. Garware Nylons Ltd. [1996 (87) E.L.T. 12 (S.C.)]
(v) Kapadia Enterprises v. CCE [2001 (131) E.L.T. 494 (Tri.)]
3.2 The Learned Counsel also made an alternative submission that in
any case, if for argument sake that if the import of impugned goods requires pri-
or permission from any of the authorities, then non-obtaining of prior permission
is only a procedural lapse which can be rectified any time before clearances of the
imported goods. For this submission, he relied upon the following decisions :-
(i) Jeevan Diesels & Electricals Ltd. v. CCE, Puducherry [2018 (359) E.L.T.
198 (Tri. - Chennai)]
(ii) CC&.CE v. JS Gupta & Sons [2015 (318) E.L.T. 63 (All.)]
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