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M/s. N.L. Technologies Pvt. Ltd., Ernakulam South, Represented by C.V. Varghese, Director, Irinjalakuda v/s Commissioner of Customs, Cochin


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Company & Directors' Information:- SOUTH INDIA COMPANY LIMITED [Dissolved] CIN = U74900KL1952PLC001113

    Cus. Appeal. No. 1 of 2019

    Decided On, 23 July 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE C.K. ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    For the Appellant: P.A. Augustian, Cimy Varghese, M.L. Linda, M.A. Baby, Advocates. For the Respondent: Sreelal N. Warrier, SC.



Judgment Text

R. Narayana Pisharadi, J.

1. Electronic waste (e-waste), ordinarily, means waste electronics/electrical goods or equipments which have become unfit for use. E-waste poses danger to environment as it contains toxic materials. Implementation of an environmentally sound e-waste management process is the object of introducing E-waste (Management) Rules, 2016 (hereinafter referred to as 'the Rules'). The present appeal involves an issue relating to effective implementation of the Rules.

2. The appellant company (hereinafter referred to as 'the company') purchased two shipments of barcode printers, scanners, printer parts, power adapters etc. from M/s.Sato Argox India Private Limited, Haryana as per 'high seas sale agreement' dated 23.02.2018. The goods arrived at Kochi and they were examined by the officer concerned. It was then found that the company had not obtained Extended Producer Responsibility - Authorisation (for short "EPR-Authorisation") which was required for importing the printers. The company waived the service of show cause notice on it as it wanted reexport of the goods. After hearing the representative of the company, the Commissioner of Customs (hereinafter referred to as 'the Commissioner') confiscated the goods but allowed the company to redeem the goods for re-export on payment of redemption fine of Rs. 4,00,000/-. The Commissioner also imposed a penalty of Rs. 50,000/- on the company.

3. The company filed appeal against the order of the Commissioner before the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore. Meanwhile, the supplier of the goods had obtained EPR-Authorisation. As per the impugned order dated 05.11.2018 in the appeal, the Tribunal found that the Commissioner should have considered the request of the company to amend the Bill of Entry for enabling the supplier to clear the goods. The Tribunal further found that the Customs Officer has power to confiscate the goods in the absence of EPR - Authorisation. However, the Tribunal reduced the redemption fine to Rs. 2,00,000/- and penalty to Rs. 25,000/-. The Tribunal also directed the department to consider the request of the company to amend the Bill of Entry. The aforesaid order of the Tribunal is challenged in this appeal.

4. The memorandum of appeal contains various grounds on which the order of the Tribunal is challenged. Subsequent to the order of the Tribunal, the Commissioner had rejected the application for amendment of the Bill of Entry. The memorandum of appeal contains grounds of challenge also against the aforesaid order of the Commissioner. However, learned counsel for the appellant pressed for hearing only the question of law relating to confiscation of goods by the customs authority at the time of import itself on the ground of nonproduction of EPR- Authorisation and the consequent imposition of redemption fine and penalty on the company. Therefore, the only substantial question of law for consideration in this appeal is the following:

"Whether non-production of Extended Producer Responsibility - Authorisation under the Rules at the time of import of the goods is a sufficient ground for confiscation of the goods under the Customs Act, 1962 (hereinafter referred to as 'the Act')?"

5. Heard the learned counsel for the appellant and also the learned Standing Counsel for the department.

6. There is no dispute with regard to the fact that the goods imported by the company included printers. There is also no dispute with regard to the fact that the company had not obtained EPR-Authorisation for the printers imported by it.

7. Learned counsel for the appellant contended that the company is only an importer of the goods and the Rules are not applicable to an importer. Learned counsel would point out that the expression "importer" is not included in the category of persons specified in Rule 2 to whom the Rules are made applicable.

8. Rule 2 states that the Rules shall apply to every manufacturer, producer, consumer, bulk consumer, collection centres, dealers, e-retailer, refurbisher, dismantler and recycler involved in manufacture, sale, transfer, purchase, collection, storage and processing of e-waste or electrical and electronic equipment listed in Schedule I, including their components, consumables, parts and spares which make the product operational. Schedule I of the Rules specifies the equipments for which EPR-Authorisation is required. Printer is one of the equipments specified in Schedule I of the Rules.

9. True, Rule 2 does not contain the expression "importer". The category of persons specified in Rule 2, to whom the Rules are made applicable, does not include an “importer” of the goods mentioned in Schedule I of the Rules.

10. However, the Rules are applicable to every producer. The term "producer" is defined under Rule 3(cc) of the Rules. As per Clause (iii) of Rule 3(cc), "producer" means any person who, irrespective of the selling technique used such as dealer, retailer, e-retailer etc, offers to sell imported electrical and electronic equipment and their components or consumables or parts or spares. The appellant company has no case that it has imported the printers not for sale. The company was involved in purchase and sale of the printers imported. Therefore, the company comes within the definition of "producer", who is specified in Rule 2, to whom the Rules are applicable. As per Rule 13(1), every producer has obligation to make an application for EPR-Authorisation. It follows that the company had the obligation to obtain EPR-Authorisation for import of the printers.

11. Learned counsel for the appellant contended that it is necessary to produce EPR-Authorisation only at the time of clearance and transport of the imported goods and that such authorisation is not necessary for mere import of goods. Learned counsel would contend that the customs authority had no power to confiscate the goods which were imported without EPR-Authorisation.

12. Section 111(d) of the Act provides that any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under the Act or any other law for the time being in force, shall be liable to confiscation. Section 2(33) of the Act defines the expression 'prohibited goods'. It states that 'prohibited goods' means any goods the import or export of which is subject to any prohibition under the Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with.

13. Section 111(d) of the Act empowers the customs authority to confiscate goods imported contrary to any prohibition imposed not only under the Act but under any other law. The definition of prohibited goods under Section 2(33) of the Act is a broad one. The said provision not only brings within its sweep an import or export of goods which is subject to any prohibition under the Act but also any other law for the time being in force (See Commissioner of Central Excise and Customs v. Suresh Jhunjhunwala: (2007) 12 SCC 391). Clause (d) of Section 111 of the Act states that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by or under the Act or any other law for the time being in force" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. The expression "any prohibition" in Section 111(d) of the Act includes restrictions. "Any prohibition" means every prohibition or in other words, all types of prohibitions. Restriction is one type of prohibition (See Sheikh Mohd. Omar v. Collector of Customs : AIR 1971 SC 293).

14. In the instant case, the printers imported by the company were prohibited goods within the meaning of Section 2(33) of the Act as they were goods for which EPR-Authorisation was required under the Rules. Therefore, the customs authority had the power to confiscate them.

15. At this juncture, it is also to be noted that, as per the entry in item No.4 in Schedule IV of the Rules, customs authority under the Act has the duty to verify the EPRAuthorisation and to inform the Central Pollution Control Board of any illegal traffic for necessary action and also to take action against the importer for violations under the Act.

16. In the aforesaid circumstances, the contention of the appellant that, production of EPR-Authorisation was not necessary for importing the printers but it was necessary only at the time of collection and transport of the imported goods, is only to be rejected. Learned counsel for the appellant invited our attention to the judgment of the Division Bench of this Court in Customs Appeal No.19/2017 (Commissioner of Customs v. M/s Atul Automations Private Limited) and contended that production of EPR-Authorisation is necessary only at the time of clearing of the imported goods. We find no such dictum laid down in the aforesaid judgment. What is stated in that judgment is only that, since the importers had obtained EPR subsequent to the orders passed by the Commissioner but before clearance of the goods, they had satisfied the requirement under the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. This observation was made by this Court in that judgment after referring to Rule 13(4) of the abovementioned Rules which provides that before clearing of consignment of wastes, the customs authorities shall verify the required documents.

17. The company had requested the Commissioner to grant permission for re-export of the goods. The Commissioner allowed the company to redeem the goods for re-export on payment of redemption fine of Rs.4,00,000/-, which was reduced by the Tribunal to Rs. 2,00,000/-.

18. Section 125(1) of the Act provides that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit. Section 126(1) of the Act states that when goods are confiscated under the Act, such goods shall thereupon vest in the Central Government.

19. When the goods are confiscated, the authority concerned has to address the question as to giving option to the importer to pay such fine as considered appropriate in lieu of confiscation of the goods (See Hargovind Das K. Joshi v. Collector of Customs: AIR 1987 SC 1982). When goods are found to be offending goods and order of confiscation is passed, then the goods shall vest in the Central Government and if they are to be restored to the owner, adjudicating authority can do so only under the provisions of Section 125 of the Act which prescribes imposition of fine in lieu of confiscation. Fine envisaged thereunder is only to get over the order of confiscation, irrespective of whether the goods are cleared for re-export (See M/s Afzal Agency v. Customs, Excise and Service Tax Appellate Tribunal: 2005 (4) KLT 821). The provision for confiscation under Section 111 of the Act lists various contingencies in which such confiscation can be proceeded with. When confiscation is provided and the Commissioner effects confiscation, then the goods becomes the property of the Central Government. A mitigation is provided insofar as the owner of the goods to opt for redemption under Section 125 of the Act (See Commissioner of Customs v. Nalin Choksey: 2018 (2) KLT 349).

20. In the instant case, the company had requested the Commissioner to grant permission for re-export of the goods and exercised the option to redeem the goods for that purpose. Therefore, the Commissioner imposed a redemption fine of Rs. 4,00,000/- on the company to enable it to re-export the goods. The Tribunal has reduced the amount of redemption fine to Rs. 2,00,000/-. We find no sufficient ground to further reduce the amount of redemption fine.

21. The Commissioner imposed a penalty of Rs.50,000/- on the company. Learned counsel for the appellant has contended that the company was not aware of the requirement of obtaining EPR-Authorisation for import of the printers and since the omission to obtain the authorisation was not wilful or deliberate, imposition of penalty was not justified.

22. Section 112(a) of the Act provides that any person, who, in relation to any goods, does or omits to do any act which act

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or omission would render such goods liable to confiscation under Section 111, shall be liable to pay penalty not exceeding the value of the goods or Rs. 5,000/-, which is greater. Mens rea is not an essential element/ingredient to impose penalty, unless the language of the statute indicates the need to establish the same. When it is provided in the statute that the act which attracts levy of penalty shall be committed 'knowingly', 'falsely', 'intentionally', 'fraudulently', 'wilfully' etc., then it can be found that it requires mens rea for imposing penalty. The use of such expressions indicates the intention of the legislature in clear terms that mens rea is an essential element. Section 112(a) of the Act does not contain any such expression. In the absence of any such expression used in Section 112(a) of the Act, mens rea is not essential to impose penalty in exercise of the power under that provision. The Tribunal has reduced the penalty from Rs. 50,000/- to Rs. 25,000/-. There is no sufficient ground to further reduce the amount of penalty. 23. In the light of the discussion above, we answer the substantial question of law raised in favour of the revenue, holding that non-production of EPR-Authorisation under the Rules at the time of import of the goods constitutes sufficient ground for confiscation of the goods under Section 111(d) of the Act. Consequently, the appeal fails and it is dismissed. No costs.
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16-03-2020 Jayakumar Assistant Professor-Cum-Assistant Director, Centre For Social Exclusion & Inclusion, Cochin University of Science & Technology, Kochi & Others Versus Dr. Jyothi S. Nair & Others High Court of Kerala
16-03-2020 Selvakumar Versus State represented by, The Deputy Superintendent of Police, Thoothukudi City, Thoothukudi South PS, Thoothukudi & Others Before the Madurai Bench of Madras High Court
13-03-2020 Syrma Technology Private Limited, Chennai Versus Powerwave Technologies Sweden AD (in bankruptcy), Rep., by the Bankruptcy Administrator, Niklas Korling & Another High Court of Judicature at Madras
13-03-2020 Arun Kumar Agarwal Versus South Central Railway & Others High Court of for the State of Telangana
13-03-2020 Parappurathu Varghese Mathai & Others Versus Principal Commissioner of Income Tax-28 & Others High Court of Judicature at Bombay
12-03-2020 Joshi Technologies International, Inc-India Projects Versus Union of India High Court of Gujarat At Ahmedabad
11-03-2020 K.P. Rahul & Others Versus State of Kerala, Represented by The Public Prosecutor, High Court of Kerala, Cochin & Others High Court of Kerala
11-03-2020 South Delhi Municipal Corporation of Delhi Through its Commissioner, Delhi Versus M/s. Sawhney Export House Pvt. Ltd. Through its Managing Director, New Delhi & Another National Consumer Disputes Redressal Commission NCDRC
10-03-2020 Ashok Kumar Versus The Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai – 90 High Court of Judicature at Madras
06-03-2020 South Eastern Coalfields Limited Versus Ashok Kumar Thakur High Court of Chhattisgarh
27-02-2020 K. Maharaja Versus The Regional Transport officer, The Regional Transport Office, Madurai South, Madurai & Another Before the Madurai Bench of Madras High Court
27-02-2020 Tvl. Trust Metal, Rep. by its Proprietrix Bhagwanti Devi Versus Assistant Commissioner (CT), Moore Market (South) Assessment Circle High Court of Judicature at Madras
27-02-2020 Sporta Technologies Pvt. Ltd. & Another Versus Edream 11 Skill Power Private Limited High Court of Delhi
27-02-2020 D. Soundararajapandian, Joint Commissioner (ST), Chennai(south), Commercial Taxes Department, Chennai & Others V/S The State of Tamil Nadu, Rep.by its Secretary, Commercial Taxes & Registration Department, Chennai & Others High Court of Judicature at Madras
19-02-2020 V. Jayakumar (Formerly Judicial First Class Magistrate, Pathanamthitta), Thiruvananthapuram Versus The High Court of Kerala, Ernakulam, Represented by Its Registrar (Subordinate Judiciary) Cochin & Another High Court of Kerala
18-02-2020 Principal Commissioner Goods & Service Tax Delhi South Versus Premium Real Estate Developers High Court of Delhi
17-02-2020 Friends of Rajouri Garden Environment (Regd.) & Another Versus South Delhi Municipal Corporation High Court of Delhi
14-02-2020 SKF Technologies (India) Private Limited, Bangalore & Another National Company Law Tribunal Bengaluru
10-02-2020 M/s. Pacific Development Corporation Ltd. V/S South Delhi Municipal Corporation & Another High Court of Delhi
06-02-2020 South Eastern Coalfield Limited, Chhattisgarh & Versus Anil Kumar, Chhattisgarh High Court of Chhattisgarh
03-02-2020 Lakshmi Rauschenbach, Rep. by Power of Attorney Anand Sasidharan Versus Valuesource Technologies (P) Ltd, Rep. by its Director Christian Lippens & Another High Court of Judicature at Madras
03-02-2020 Sutherland Mortgage Services INC, Cochin, Represented by Achutarama Gupta Nesthala Vizupu, Authorized Signatory, V.K. Gupta Versus The Principal Commissioner, Office of The Principal Commissioner of Customs, Central GST & Central Excise, Kochi Commissionerate & Others High Court of Kerala
31-01-2020 Sarine Technologies Ltd. Through Authorised Signatory Prachi Bhardwaj Versus Diyora & Bhanderi Corporation Through Partner Dhaval Dahyabhai Diyora High Court of Gujarat At Ahmedabad
31-01-2020 The South India Cine and Television Setting Workers Union Rep.by its President K.G.Jeevanandam (a) K.G.Jeeva Versus The Inspector General of Registration, Chennai & Others High Court of Judicature at Madras
31-01-2020 In Phase Power Technologies Private Limited V/S ABB India Limited Competition Commission of India
30-01-2020 Chandra Ratan Bajaj V/S PIO/Dy. Chief General Manager (South), Delhi Transport Corporation (Govt. of NCT of Delhi) & Others Central Information Commission
27-01-2020 P.V. Sudhamol Versus Mariamma Varghese & Another High Court of Kerala
27-01-2020 Muhammed Ameen & Another Versus The Narcotic Control Bureau, Cochin, Represented by Its Intelligence Officer, Through Its Special Public Prosecutor, High Court of Kerala, Ernakulam High Court of Kerala
24-01-2020 South Indian Artistes' Association, Rep. by its General Secretary, T. Nagar Versus The Registrar of Societies, South Chennai, District Registrar (Admin), Guindy Industrial Estate, Guindy & Others High Court of Judicature at Madras
23-01-2020 Tata Consultancy Services Limited, TCS Centre, Kochi, Represented by Its Asst. General Manager-HR, Boban Varghese Thomas & Others Versus State of Kerala, Represented by Its Secretary, Labour & Welfare Department, Government Secretariat, Thiruvananthapuram & Others High Court of Kerala
23-01-2020 Tata Consultancy Services Limited, Kochi, Represented by Its Asst. General Manager-HR, Boban Varghese Thomas & Others Versus State of Kerala, Represented by Its Secretary, Labour & Welfare Department, Government Secretariat, Thiruvananthapuram & Others High Court of Kerala
22-01-2020 M/s. IRCON International Limited, (A Government of India Undertaking), Rep. by its Joint General Manager(South), Bangalore Versus The Government of Tamil Nadu, Rep. by the Superintending Engineer(H), Villupuram High Court of Judicature at Madras
21-01-2020 N. Pandu Versus The Zonal Manager, LIC of India, South Central Zonal Office, Jeevan Bhagya, Saifabad, Hyderabad Telangana State Consumer Disputes Redressal Commission Hyderabad
16-01-2020 Sudarshan & Others Versus South Eastern Coalfields Limited Through Chairman-Cum- Managing Director SECL, Chhattisgarh & Others High Court of Chhattisgarh
14-01-2020 N.K. Mohanachandran Versus CBI/SPE, Cochin Rep. by Its Standing Counsel, High Court of Kerala High Court of Kerala
13-01-2020 Kodanchery Service Co-Operative Bank Ltd., Represented by Its Secretary, Kozhikode & Others Versus Joshy Varghese & Others High Court of Kerala
09-01-2020 M/s. Grant Thornton India LLP., New Delhi Versus 63 Moons Technologies Limited, Formerly Known as Financial Technologies (India) Ltd., Chennai & Another High Court of Judicature at Madras
09-01-2020 Quick Heal Technologies Limited V/S Commissioner of Service Tax, Delhi Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
08-01-2020 St. Mary's Jacobite Syrian Orthodox Church, Thodupuzha Kara, Represented by Its Trustees, M.C. Shibu (2) Benny Elias & Others Versus Dr. Abraham Varghese & Others High Court of Kerala
08-01-2020 M.K. Varghese Cor Episcopa, Now Working as Vicar, St. Marys Orthodox Church, Koipally, Kayamkulam Versus State of Kerala Represented by The Public Prosecutor, High Court of Kerala, Kochi & Another High Court of Kerala
08-01-2020 Rafi Ahmed & Others Versus The Deputy Superintendent of Police, National Investigation Agency Cochin (Camp at Chennai) High Court of Judicature at Madras
06-01-2020 Cochin Port Trust, Represented by Its Chairman & Others Versus Sea Consortium Pvt. Ltd., Duxton Hill, Singapore, Represented By Their Local Agents, Forbes Gokak Ltd., Patvolk Division, Cochin & Another High Court of Kerala
06-01-2020 S.K. Sarawagi & Co. Private Limited V/S Commissioner of CGST & CX, Kolkata South Commissionerate Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
03-01-2020 Balakrishna Sales Corporation V/S Commissioner of Central Tax & Central Excise, Cochin Customs Excise Service Tax Appellate Tribunal Regional Bench, Bangalore
20-12-2019 Union of India Rep. by its General Manager, South Central Railways, Secunderabad Versus Razia Sulthana & Others High Court of for the State of Telangana
19-12-2019 Noorjahan Versus Kalamassery Municipal Council, Represented by Secretary, Cochin High Court of Kerala
19-12-2019 Cochin Port Trust, Willingdon Island, Kochi, Represented by Its Chairman, Jacob Thomas & Others Versus Parisons Roller Flour Mills Private Limited, Calicut & Others High Court of Kerala
18-12-2019 M/s. Dyna Technologies Pvt. Ltd. Versus M/s. Crompton Greaves Ltd. Supreme Court of India
16-12-2019 M/s. Taranga Technologies, Andhra Pradesh Versus M/s. Neels Enterprises Pvt. Ltd., Represented by its Managing Director, Chennai High Court of Judicature at Madras
12-12-2019 Tularam @ Khamman Sai Versus South Eastern Coalfields Limited, through its Chairman-cum-Managing Director, Seepat Road, Bilaspur (CG) & Others High Court of Chhattisgarh
11-12-2019 Sterlite Technologies Limited Rep by Chief Manager K. Sundar & Another Versus Bharat Sanchar Nigam Limited, Rep by Managing Director, Harish Chandra Mathur Lane, Janpath, New Delhi & Others High Court of Judicature at Madras
11-12-2019 V.U. Sidhique Versus State of Kerala Rep. by Public Prosecutor, High Court of Kerala, Cochin High Court of Kerala
10-12-2019 Joseph Charles & Others Versus State, Rep. by Inspector of Police, All Women Police Station-South, Madurai & Another Before the Madurai Bench of Madras High Court
10-12-2019 The Assistant Executive Engineer, Kerala State Electricity Board Ltd. Kanjirappally Versus The Consumer Grievance Redressal Forum (South), Kottarakkara, Represented by Its Chairman & Another High Court of Kerala