Strantech Vs. Cc - Court Judgment

Excerpt:
1. this is application for early hearing of the appeal and the same is allowed. after having examined the records and after hearing both sides, i am convinced that this appeal requires to be remanded to the original authority and therefore the appeal itself can be disposed of at this stage. i therefore, proceed to dispose of the appeal itself.2. appearing on behalf of the appellants, id, consultant shri t.r.s.mani submits that the original authority has held that they were not liable to pay anti dumping duty. the original authority has directed them that they shall clear the goods on fulfilling the conditions as contained in rules 5 and 6 of the batteries (management and handling) rules, 2001. ld. consultant invites my attention to page 26 of the paper book which contains batteries (management and handing) rules, 2001 issued vide so. 432 (e) dated 16th may, 2001 by the ministry of environment and forests. rule 5 of the above rules stipulates that they shall get themselves registered with the ministry of environment and forests or an agency designated by it by submitting details in form-ii.rule 6 stipulates that customs clearance of imports shall be contingent upon-- (i) valid registration with the reserve bank of india (with importer's code number) (ii) one time registration with the ministry of environment and forests or an agency designated by it in form-ii; ld. consultant further submits that they have submitted the undertaking in form iii on 21.5.2004 as well as submitted an application for registration of importer of new lead acid batteries/primary lead in form ii to the ministry of environment. but they have not been above to obtain the one time registration from the ministry of environment and forests so far. he also submits that they have valid registration with the reserve bank of india and they have importer licence vide 0503032590 which has also been mentioned in their form ii application for registration. he further submitted that the environment authorities have neither issued registration certificate nor have they explained the reasons for non issuance of the registration certificate to them.he further submits that the batteries imported by them are deteriorating day-by-day and they are not very sure by which time they are able to secure the registration certificate from the environmental authorities. he, therefore, submits that the matter may be re-adjudicated by original authority so that they could dispose of the batteries and put to use for which they were imported. he also invited may attention to the prayer made to commissioner (appeals) as contained in page 73 of the paper book, wherein they have made a prayer to him that appellants are willing to get the goods confiscated under section 111(d) of the customs act, for this technical offence of non-production of registration certificate till date, and it was required by the lower appellate authority to have remanded the case to the original authority for taking such decision as was requested by them, in case they were not able to satisfy the conditions as contained in rules 5 and 6 of the rules ibid.3. appearing on behalf of the revenue, id. sdr shri b.l. meena, submits that he has no objection for remission of the case to the original authority.4. i have examined that records and considered the submissions made by both sides and i am of the considered opinion that this matter requires to be remanded to the original authority for re-adjudicating the matter in terms of the proposal made in the show-cause notice regarding confiscation of goods under section 111(d) and imposition of penalty under section 112(a) of the customs act, 1962, as the appellants are not able to fulfill the conditions as contained in rules 5 & 6 of the batteries (management and handling) rules, 2001. the goods should have been confiscated under section 111 (d) and they should also have been imposed penalty under section 112(a) of the customs act, 1962, as was originally proposed in sub-paras (iii) and (iv) of para 8 of the show-cause notice f.no. depb/misc/94/2004-gr.7b dated 6.4.2004. the appellants shall, however, he given a reasonable opportunity of being heard before the case is readjudicated. i, therefore, set aside the impugned order, and the attendant order-in-original, except the portion of his order relating to anti-dumping duty as contained in para 20. the appeal is thus allowed by way of remand to the original authority.

Judgment:
1. This is application for early hearing of the appeal and the same is allowed. After having examined the records and after hearing both sides, I am convinced that this appeal requires to be remanded to the original authority and therefore the appeal itself can be disposed of at this stage. I therefore, proceed to dispose of the appeal itself.

2. Appearing on behalf of the appellants, Id, Consultant Shri T.R.S.Mani submits that the original authority has held that they were not liable to pay anti dumping duty. The original authority has directed them that they shall clear the goods on fulfilling the conditions as contained in Rules 5 and 6 of the Batteries (Management and Handling) Rules, 2001. Ld. Consultant invites my attention to page 26 of the paper book which contains Batteries (Management and Handing) Rules, 2001 issued vide SO. 432 (E) dated 16th May, 2001 by the Ministry of Environment and Forests. Rule 5 of the above rules stipulates that they shall get themselves registered with the Ministry of Environment and Forests or an agency designated by it by submitting details in Form-II.Rule 6 stipulates that Customs clearance of imports shall be contingent upon-- (i) valid registration with the Reserve Bank of India (with Importer's Code Number) (ii) one time registration with the Ministry of Environment and Forests or an agency designated by it in form-II; Ld. Consultant further submits that they have submitted the undertaking in Form III on 21.5.2004 as well as submitted an application for registration of importer of New Lead Acid Batteries/Primary Lead in Form II to the Ministry of Environment. But they have not been above to obtain the one time registration from the Ministry of Environment and Forests so far. He also submits that they have valid registration with the Reserve Bank of India and they have Importer licence vide 0503032590 which has also been mentioned in their Form II application for Registration. He further submitted that the Environment authorities have neither issued registration certificate nor have they explained the reasons for non issuance of the Registration Certificate to them.

He further submits that the Batteries imported by them are deteriorating day-by-day and they are not very sure by which time they are able to secure the Registration Certificate from the Environmental authorities. He, therefore, submits that the matter may be re-adjudicated by original authority so that they could dispose of the batteries and put to use for which they were imported. He also invited may attention to the prayer made to Commissioner (Appeals) as contained in page 73 of the paper book, wherein they have made a prayer to him that appellants are willing to get the goods confiscated under Section 111(d) of the Customs Act, for this technical offence of non-production of Registration Certificate till date, and it was required by the lower appellate authority to have remanded the case to the original authority for taking such decision as was requested by them, in case they were not able to satisfy the conditions as contained in Rules 5 and 6 of the Rules ibid.

3. Appearing on behalf of the Revenue, Id. SDR Shri B.L. Meena, submits that he has no objection for remission of the case to the original authority.

4. I have examined that records and considered the submissions made by both sides and I am of the considered opinion that this matter requires to be remanded to the original authority for re-adjudicating the matter in terms of the proposal made in the Show-cause Notice regarding confiscation of goods under Section 111(d) and imposition of penalty under Section 112(a) of the Customs Act, 1962, as the appellants are not able to fulfill the conditions as contained in Rules 5 & 6 of the Batteries (Management and Handling) Rules, 2001. The goods should have been confiscated under Section 111 (d) and they should also have been imposed penalty under Section 112(a) of the Customs Act, 1962, as was originally proposed in sub-paras (iii) and (iv) of para 8 of the Show-cause Notice F.No. DEPB/MISC/94/2004-Gr.7B dated 6.4.2004. The appellants shall, however, he given a reasonable opportunity of being heard before the case is readjudicated. I, therefore, set aside the impugned order, and the attendant Order-in-Original, except the portion of his order relating to Anti-dumping duty as contained in para 20. The appeal is thus allowed by way of remand to the Original Authority.