ORDER
P.G. Chacko, Member (J)
1. The appellants imported two consignments of what was declared as ‘Furnace Oil’ and sought clearance thereof under Bills of Entry No. 214699 dated 9.9.99 and No. 215058 dated 17.9.99 at ICD. Tughlakabad, New Delhi. The goods were put to first check, pursuant to which samples were tested at the Central Revenue Control Laboratory (CRCL), New Delhi to ascertain if the goods were hazardous or not in terms of CBEC’s Circular No. 60/97 dated 12.11.97 issued as per the guidelines given by the nodal ministry (Ministry of Environment & Forests). The chemical tests indicated the presence of chlorinated solvents and polychlorinated biphenyl, triphenyl etc. which chemicals were in the list of hazardous chemicals vide Board’s Circular No. 60/97 ibid. At the instance of the importer, a retest was conducted by the CRCL. As the retest result showed wide variation, CRCL was requested to clarify. They clarified that, according to technical literature, Furnace Oil was not to have high chlorine content and hence the case was not free from doubt. The Customs authorities took up the matter with the nodal Ministry and did not allow provisional clearance of the goods.
2. The importer filed a writ petitioner (C.W.P. No. 4082/2001) in the Delhi High Court for a direction to the Customs authorities to permit clearance of the goods. The respondents in the C.W.P. submitted that, as CRCL and other laboratories in the country were not adequately equipped to test the quantitative parameters laid down in Board’s Circular No. 60/97, the Ministry of Environment & Forests had revised the guidelines and accordingly CBEC had issued Circular No. 106/2000 dated 22.12.2000 laying down revised parameters for hazardous waste oil. The High Court directed testing of fresh samples of the goods as per the revised guidelines and, upon such testing, the samples were found to be acidic and not confirming to BIS specifications for fuel oil/furnace oil vide IS: 1593/1982. The parameters laid down by Board’s Circular No. 106/2000 for off-specification furnace oil were as follows :-
Sl. No. Test Prescribed Limit (Max) 1. Acidity (Inorganic) NIl 2. Ash content 0.1% 3. Sediment 0.25% 4. Water 1%
As the samples of the subject goods failed the screening test in terms of the above parameters, the goods appeared to be off-specification furnace oil. Under “ITC (HS) Classification of Import & Export Items”, specific licence of the Director-General of Foreign Trade (DGFT) was required for the import of such off-specification goods. The appellants failed to produce specific import licence in respect of the consignments. The Customs authorities also observed that they had not followed the procedure laid down under the Hazardous Wastes (Management and Handling) Rules 1989 made under the Environment (Protection) Act 1986. The department, therefore, in a show-cause notice dated 27.8.2002 issued to the party, proposed to confiscate the goods under Section 111(d) of the Customs Act. The proposal was contested on the strength of the High Court’s judgment in C.W.P. No. 4082/2001. It was contended by the party that the legality of the import had already been settled by the High Court in their favour and therefore the goods were not liable to confiscation. The adjudicating authority, however, ordered absolute confiscation of the goods. It’s decision is under challenge in this appeal.
3. Heard both the sides. Shri G.L. Rawal, Counsel for the appellants, has elaborately referred to the High Court’s judgment (reported in 2002 (140) ELT 353 (Del.)) and argued that as the import was held to be legal it was not open to the Customs authorities to treat it as illegal as long as the High Court’s judgment operated. The show-cause notice itself is tantamount to contempt of the Hon’ble High Court, the learned Counsel submitted. The DR has reiterated the findings of the Commissioner.
4. I have carefully considered the matter. On a perusal of the Hon’ble High Court’s judgment in Om Petrochemicals v. Union of India [2002 (140) ELT 353 (Del.)], I not that the court has considered, and decided in, the question whether the import of the subject goods was legal or not. Their lordship’s decision is contained in para (20) of their judgment, which reads:
“20. In the instant case, having regard to the legal position as noticed above it must be held that the import of the goods in question was legal. It was even legal when the goods reached the port.”
‘Legal’ means “in accordance with law” and “law” includes the Rules referred to in the show-cause notice and the impugned order. The confiscation was ordered under Section 111(d) of the Customs Act. The relevant clause reads as under :-
“111. Confiscation of improperly imported good, etc. – The following goods brought from a place outside India shall be liable to confiscation :-
(a) ………….
(b) ………….
(c) ………….
(d) 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 this Act or any other law for the time being in force;”
The above clause could be invoked to confiscate those goods which are imported or attempted to be imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force. In the instant case, the goods cannot be held to have been imported “contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force” as the same was imported legally as held by the High Court. When the importation is legal, it gets over all prohibitions of the kind mentioned in Clause (d) of Section 111 of the Customs Act. Therefore, the goods in question does not attract Section 111 (d) of the Act and hence it is not liable to confiscation. The view taken by the Commissioner cannot be sustained.
5. For the aforesaid reasons, the impugned order is set aside and the appeal is allowed.