Page 237 - ELT_1st September 2020_Vol 373_Part 5

2020 ] RUBY IMPEX v. COMMISSIONER OF CUSTOMS, GHAZIABAD 675

sentative Shri Anupam Kumar Tiwari appearing for the Revenue, we find that
importer M/s. Ruby Impex imported 8 containers of Zinc Scrap. The Bill of Entry
was filed only in respect of one container and on examination, the container was
found containing lead scrap, instead of zinc scrap declared by them. The appel-
lant took a ground that they have in fact ordered for ‘zinc scrap’ and the supplier
has mistakenly sent the lead scrap. As such no Bill of Entries were filed in respect
of balance 7 containers and a request to re-export the goods was made.
3. However, the appellants request was not accepted and proceedings
were initiated against them proposing confiscation of the goods and imposition
of penalties. Vide the impugned order Commissioner absolutely confiscated the
scrap along with imposition of personal penalty of Rs. 25 lakhs on M/s. Ruby
Impex and a separate penalty of Rs. 10 lakhs on Shri Kishan Lal Chawla, Proprie-
tor of M/s. Ruby Impex. Further, penalties of Rs. 10 lakhs each was imposed on
Shri Tejpal Singh, proprietor of the CHA firm and freight forwarding agent Shri
Mool Chand Sharma. Penalty of Rs. 1 lakh was imposed upon Shri Brij Mohan
Hudda, G. Card Holder of CHA. The said order of Original Authority is im-
pugned before us.
4. Learned Advocate appearing for M/s. Ruby Impex submits that they
had infact ordered for ‘Zinc Scrap’ and agrees that the ‘Lead Scrap’ supplied by
the foreign supplier was in contravention of the provisions of Hazardous Wastes
(Management, Handling and Transboundary Movement) Rules. However, he
draws our attention to Rule 17(2) of the said Rules which provide for re-export of
the goods in case of illegal import. He submits that the import of lead scrap is not
banned but restricted, subject to production of permission from the Ministry of
Environment. As such he submits that their request for re-export should have
been accepted. He also prays for reduction of penalties.
Ms. Reena Rawat along with Ms. Ekta Kapoor, Learned Advocates ap-
pearing for the appellants submits that the appellants are CHA, Freight Forward-
ing Agent, G. Card Holder of the CHA. There is no evidence on record to show
that the persons were having any knowledge about the contents of the containers
and the Bill of Entry was filed by them based upon the document provided by
the importer. She also submits that the duty involved in the said Bill of Entry was
only to the extent of Rs. 81,000/- and as such imposition of heavy penalty upon
them are neither warranted nor justified.
5. After hearing the Learned AR and on going through the impugned
order we are of the view that the appeals can be disposed of by taking into con-
sideration the provisions of Rule 17(2) of Hazardous Wastes (Management, Han-
dling and Transboundary Movement) Rules. For better appreciation the same is
reproduced bellow :-
“(2) In case of illegal import of the hazardous wastes, the importer shall
re-export the waste in question at his cost within a period of ninety days
from the date of its arrival into India and its implementation will be en-
sured by the concerned State Pollution Control Board.”
As is seen from above, the Rule itself provide for re-export of the goods in case
the same stands illegally imported into India. As such without going into the
facts as to whether such import was intentional or by mistake, we are of the view
that the ends of justice would meet, if the said goods are allowed to be re-
exported. We order accordingly and direct the authorities to allow the re-export
of the goods.

EXCISE LAW TIMES  1st September 2020  237