M/S NL Technologies Pvt Ltd v Commissioner of Customs, Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** **Cus.Appeal.No.1 of 2019** **AGAINST FINAL ORDER NO.21714/2018 BY CESTAT, SZB, BANGALORE DATED 05-11-2018** ## **APPELLANT:** **M/S.NL TECHNOLOGIES PVT LTD CENTRO 1 BUILDING,39/3295A, GROUND FLOOR,ERNAKULAM SOUTH ,PIN CODE-682 016, REPRESENTED BY C.V.VARGHESE, DIRECTOR AGED 67 YEARS, S/O. LATE C.A.VAREED,R/O. CHEMPOOTTIL HOUSE, COURT SIDE ROAD, NADA, IRINJALAKUDA-680 120** **BY ADVS. SRI.P.A.AUGUSTIAN SMT.CIMY VARGHESE SMT.LINDA.M.J. SRI.M.A.BABY** ## **RESPONDENT:** **COMMISSIONER OF CUSTOMS, COCHIN CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682 009** **BY ADV. SREELAL N.WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS** **THIS CUSTOMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cus.Appeal No.01/2019 2 **“CR”** ## **C.K.ABDUL REHIM** ## **&** ## **R.NARAYANA PISHARADI, JJ.** ************************** Customs Appeal No.1 of 2019 ---------------------------------------------Dated this the 23[rd] day of July, 2019 ## **J U D G M E N T** ## **R.Narayana Pisharadi, J** 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 Cus.Appeal No.01/2019 3 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 Cus.Appeal No.01/2019 4 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_ Cus.Appeal No.01/2019 5 _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 Cus.Appeal No.01/2019 6 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 Cus.Appeal No.01/2019 7 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 Cus.Appeal No.01/2019 8 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 Cus.Appeal No.01/2019 9 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 Cus.Appeal No.01/2019 10 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 Cus.Appeal No.01/2019 11 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 Cus.Appeal No.01/2019 12 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 Cus.Appeal No.01/2019 13 which act 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 Cus.Appeal No.01/2019 14 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. (sd/-) **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/19/07/2019 Cus.Appeal No.01/2019 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A TRUE COPY OF THE ORDER-IN -ORIGINAL NO.COC-CUSTOMS-000-COM-17/2018-19 DATED 03.07.18 ANNEXURE-B TRUE COPY OF HE EPR AUTHORIZATION NO.B29016 (601)/(EPR)/18/WM-III DIVISION DATED 24.08.18 OBTAINED BY M/S. SATO ARGOX INDIA PVT LTD ANNEXURE-C TRUE COPY OF THE LETTER DATED 27.08.18 SUBMITTED BY APPELLANT ANNEXURE-D TRUE COPY OF THE LETTER DATED 27.08.18 SUBMITTED BY M/S. SATO ARGOX INDIA PVT LTD ANNEXURE-E TRUE COPY OF THE JUDGMENT DATED 16.10.18 IN WRIT PETITION NO.30134 OF 2018 ANNEXURE-F CERTIFIED COY OF THE FINAL ORDER NO.21714/2018 DATED 02.11.18 ANNEXURE-G TRUE COPY OF THE LETTER DATED 12.11.18 ANNEXURE-H TRUE COPY OF THE ORDER -IN ORIGINAL NO.COC-CUSTOMS-000-42/2018-19 DATED 27.12.18** **TRUE COPY PS TO JUDGE**