Elipe Dharma Rao, J.@mdashSince all these matters are inextricably interconnected with each other, they have been heard in common and are being disposed of by this common judgment.
2. For the sake of easy reference, the parties are referred to as per their ranking in the Writ Appeal No. 721 of 2007.
3. From the materials placed on record it is seen that the Appellant/ITC Limited has placed an order with the seventh Respondent/Evergreen Specialties Inc. for supply of Mixed Waste Papers single stream on 10.8.2005. According to the Appellant/ITC Limited, they are India''s largest manufacture? and exporter of paper/paperboards with multiple manufacturing facilities and in the manufacture of paper/paperboard, apart from wood pulp, they use ''recovered waste paper'' which is their basic raw material and since Europe and USA being the high per capita countries in the consumption of paper/paper-board, they regularly import their requirement of cost competitive waste paper from these countries.
4. It is further seen that the Appellant has filed two Bills of Entry bearing Nos. 371549, dated 13.9.2005 and 372089 dated 20,9.2005 through their agent M/s. Indev Shipping Services Limited/the third Respondent for clearance of 40 numbers of containers, declaring the cargo as ''waste paper''. The goods on de-stuffing and on examination by the Customs on 22.9.2005, were found to be waste paper mixed with used plastic carry bags, pet bottles, used clothes, shoes and other household articles, used soft drink metal cans leaching out dirty liquid and emitting foul smell, thus falling within the definition of ''municipal waste'' under Chapter 38 Note 4 of the First Schedule to the Customs Tariff Act and hazardous waste having characteristics of eco toxic and infectious substances to be dealt with under the provisions of the Hazardous Wastes (Management and Handling) Rules, 1989.
5. Thus, since the goods imported were found to be unsorted scrap of waste paper, heavily contaminated with municipal waste/garbage attracting the classification of ''municipal waste'' and ''hazardous waste'', show-cause notice dated 26.9.2005 was issued by the Customs officials to the importer/Appellant and their agent N/s. Indev Shipping Services (Tuticorin) Pvt. Ltd., to show-cause as to why they both (i) should not be held liable to confiscation under the Customs Act, (ii) should not be directed to re-export the goods at their own risk, costs and consequences thereon and (iii) as to why penalty should not be imposed on them u/s 112 of the Customs Act.
6. It is seen that the importer/Appellant by their letter dated 27.9.2005 addressed to the Commissioner of Customs, Tutieorin/the fifth Respondent has stated that the subject import consigned to them do not contain wastepaper and is in contrary to their order conditions and therefore, they have rejected the material 100% and informed the supplier.
7. It is also seen that the Central Pollution Control Board, Bangalore as Monitoring Committee of the Supreme Court on hazardous waste, pursuant to the judgment of the Honourable Apex Court in Research Foundation for Science Technology National Resource Policy v. Union of India and Anr. (2005) 10 SCC 510 happened to visit and examine the above said cargo on 29.9.2005 and by their report dated 4.10.2005 to the Commissioner of Customs, Tuticorin, they have reported that ''the consignment is not satisfying the description of waste paper as the cargo was found to be mixed with used pet bottles, metal cans, plastic bags and jut? rugs and other municipal solid waste'' and has also opined that the hazardous waste in question does not conform to the shipping details provided in the customs documents and therefore, it shall be treated as illegal traffic and required to be dealt with in accordance with Rule 15 of the Hazardous Wastes (Management and Handling) Rules notified in 1989 by the Ministry of Environment and Forests, Government of India under the Environment (Protection) Act, 1986.
8. In the meantime, by the letter dated 26.9.2005, the Evergreen Specialties Inc., addressed to the Commissioner of Customs, Tuticorin Port has stated that by mistake somebody else''s cargo, with plastic content destined for another country, was shipped to India. They have also stated that their buyers ITC, have never imported or made any attempts to purchase this kind of material at any time in the past, present or in the near foreseeable future.
9. As a reply to the above said show-cause notice, the Appellant, by their letter dated 5.10.2005, has requested permission for re-export of the entire cargo of 40 containers enclosing the copy of supplier''s letter dated 26.9.2005 and the Commissioner of Customs, by the Note Order dated 7.10.2005 has ordered immediate re-export of subject cargo in 40 containers. Accordingly, the Appellant filed eight shipping bills for re-export of 40 containers to the consignees ''M/s . Evergreen Specialities Inc., 394 Vanderveer Road, Bridgewater, UAE. Pursuant to this, the Appellant requested the first respondent/M/Norasia Container Lines Limited to allot forty numbers of 40 feet empty containers to stuff their cargo to be shipped from Tuticorin to Ajman. On allotment of containers by the first Respondent, the Appellant took the 40 containers to the warehouse and did the stuffing, loading and sealing of the containers in the presence of the Customs officials and handed over the sealed stuffed container for shipment. Therefore, the first Respondent would contend that neither themselves nor their agent have seen the cargo or its stuffing process or the contents of the 40 containers and the Appellant and the third Respondent/In-dev Shipping Services have declared the details of cargo which were entered in the Bill of Lading as "mixed waste paper". When these 40 containers reached Ajman, the Customs Authorities at Ajman, UAE examining five containers out of 40, found that the said cargo was mis-declared in the Bill of Lading and accordingly directed the first Respondent through their agents in UAE to re-export the containers back to shipment port in India or else to face necessary action. Immediately thereafter, the first Respondent informed the agents of the Appellant and the third Respondent in UAE and the importer/JDH International LLC, Dubai, UAE by their letter dated 21.2.2006 about the letter issued by the Customs and instructed them that if they do not take delivery of the cargo, the carrier would re-export the cargo back to the port of ori-gin/loading/Tuticorin, India, for which the Appellant and the third Respondent and also the JDH International LLC, Dubai, UAE would be held responsible for all charges including ground rent, demurrage charges, survey charges etc.
10. It is seen that for the letter dated 21.2.2006, addressed by the first Respondent, the Appellant had sent a reply on 27.2.2006, denying the liability and further stating that they are not the shipper of the cargo and that the cargo was shipped to the consignee M/s JDH International LLC in Ajman by Evergreen Specialties, USA and that the cargo was originally wrongly shipped to them by Evergreen Specialities, USA and tried to shift the responsibility to the consignee M/s.JDH International LLC and Evergreen Speciali-ties, USA. Therefore, the first Respondent herein has filed W.P.(MD) No. 768 of 2007 before this Court, praying to issue a Writ of Mandamus, directing the Respondents 4,5 and 6 therein (viz.the Tuticorin Port Trust, the Commissioner of Customs and PSA Sical Terminal Limited respectively) to take steps to destuff the cargo from the containers belonging to him, which are lying in the customs yard, as provided under Sections 61 and 62 of the Major Port Trust Act and Sections 30 and 48 of the Customs Act and release the empty containers to the writ Petitioner, wherein, the learned single Judge has passed the following order on 21.9.2007:
Para No. 43. Accordingly, the writ petition is disposed of with the following directions:
(a) The Petitioner is permitted to shift the 35 containers in question to any one of the Customs Bonded Warehouses in Tuticorin at his own cost within a period of two weeks, under the supervision of an Officer nominated by the fifth Respondent.
(b) The Customs Bonded Warehouse to which the containers are shifted, shall be kept under the lock and key of an Officer nominated by the fifth Respondent.
(c) If the Petitioner or the second Respondent is able to get 35 containers of the same size and description for hire, they shall be permitted by the fifth Respondent to transfer the cargo from the containers in question to the newly hired containers, again under the supervision of the officials of the Commissionerate of Customs, as had been done at the time of re-export to Ajman, UAE. After such transfer, the Petitioner may take away their empty containers.
(d) Within four weeks from this date, the fifth Respondent shall have the cargo examined by the Team of Officials nominated by the Central Pollution Control Board for a final determination of the question as to whether the goods are hazardous in nature which could only be incinerated or disposed of otherwise. The cost of such examination shall be borne in the first instance by the second Respondent.
(e) If after the examination of the cargo, the Central Pollution Control Board comes to a final determination that it is hazardous, then the second Respondent shall have the cargo incinerated or re-exported back to Evergreen Specialities Inc, USA or to any one else in any other country. If the material is held by the Central Pollution Control Board to be either non-hazardous or fit for disposal locally (through hazardous), the fifth Respondent may permit the disposal of the cargo locally, subject however to the terms and conditions imposed by the Central Pollution Control Board. The incineration or re-export or local disposal shall be as recommended by the Pollution Control Board and it shall be at the cost of the second Respondent, in the first instance. The second Respondent shall carry out this obligation, as per the recommendation of the Pollution Control Board, within six weeks of submission of the report, by the Pollution Control Board.
(f) Till the time the cargo is re-exported or incinerated or disposed of locally, the Petitioner shall bear the lease rental for the newly hired Customs Bonded Warehouse (to which it is shifted), as well as for the containers hired by them for the transfer of the cargo. It will be open to the Petitioner to include this item of expenditure in the claim made by them in the Civil Court.
(g) The obligations carried out and the expenses incurred, by the Petitioner or the second Respondent or the fifth Respondent in carrying out the above directions, shall be without prejudice to each other''s rights agitated in the civil suit. No costs. Consequently, connected miscellaneous petitions are closed.
11. Pursuant to the directions of the learned single Judge, the Central Pollution Control Board examined the impugned cargo on 7.11.2007 and have submitted a report dated 16.11.2007, wherein they have recommended as follows:
The containers opened exhibited a putrid odour typical of non-segregated municipal garbage/waste. Significant number of insects could be observed in the containers which is indicative of organic municipal waste.
In view of the above observations and present conditions of the consignments, it would be appropriate to deal the above consignments in accordance with the provisions laid down under Rule 15 of Hazardous Waste (Management and Handling) Rules 2003, in view of the illegal traffic.
In order to avoid such illegal traffic into the country or discourage such illegal imports into the country in future and keeping in view the protection of the environment as well as the public in India, that may likely to pose a threat to the environment, if such illegal consignments are handled or disposed of in the country.
The visited team members hereby strongly recommend that the Commissioner of Customs, Custom House, Tuticorin shall direct the second Respondent (FTC Limited) to re-export all such consignments to the exporter (in this case M/s. Evergreen Specialities Inc. USA) in accordance with the Rules 15(2) of Hazardous Waste (Management and Handling) Rules, 1989 and further amendments made in the year 2000 and 2003.
12. Thereupon, the Customs Department by the order dated 23.11.2007 has directed the ITC Limited to comply with the above recommendations in the report of Expert Panel and to re-export the 35 containers in accordance with Rule 15(2) of the Hazardous Waste (Management and Handling) Rules 1989 at the risk and costs of ITC. Aggrieved by the order passed by the learned single Judge in W.P. (MD) No. 721 of 2007, extracted supra, the second Respondent therein viz. ITC Limited has filed this Writ Appeal (MD) No. 721 of 2007. Further, aggrieved by the above recommendations of the Expert Body of the Pollution Control Board, dated 16.11.2007 and the consequential order passed by the Commissioner of Customs, the same Appellant viz. ITC Limited has filed W.P. (MD) Nos. 5989 and 5994 of 2008.
13. Heard Mr. Arvind P. Datar, learned senior counsel for the Appellant, Mr. V.J. Mathew for the first Respondent, Mr. M. Ravindran, Additional Solicitor General of India for Respondents 2 and 5, Mr. K.srinivasan, for the third Respondent, Mr. S. Yeshwanth for the fourth Respondent, Mr. S. Silambanan, Senior Counsel for the 6th Respondent, Mr. G.R. Swaminathan for the 7th Respondent and Mr. R. Ramanlal for the 8th Respondent.
14. Mr. Arvind P. Datar, learned senior counsel appearing for the Appellant has vehemently argued that the Appellant is not the ''importer'' of the cargo in the true meaning of the Hazardous Waste (Management and Handling) Rules, 1989 and therefore, the relief granted by the learned single Judge cannot be sustained under law. He has further argued that the finding of the Central Pollution Control Board, branding the cargo as ''illegal traffic'' is illegal and there is no conclusive finding by the Central Pollution Control Board that the cargo is a hazardous waste; that since the cargo contains plastic, it cannot be called as hazardous and would submit that the entire impugned action has been initiated by the customs officials unnecessarily at the instance of the writ Petitioner and if at all the writ Petitioner has got anything to be said against the Appellant, it has to be done only in the civil suit already pending before the civil court.
15. The arguments advanced on the part of the learned senior counsel for the Appellant were pooh-poohed by the learned Counsel appearing for the first Respondent and the learned Additional Solicitor General appearing for the Respondents 2 and 5. They would argue that all the Bills of Entry show that the Appellant is the importer of the cargo and even according to the Appellant, he has ordered ''waste paper'' from M/s. Evergreen Inc., USA and having found that the goods are not to his specifications or not the ones required by him, he sought to cancel the bills of entry and even the original exporter M/s. Evergreen Inc., USA has addressed a letter to the Customs Officials, regretting the mistake committed by him. Therefore, the Appellant, cannot now turn down and say that he is not the importer of the goods in question.
16. It has also been argued by the learned Additional Solicitor General and the learned standing counsel for the Pollution Control Board that before the learned single Judge all the parties have agreed to send an expert body to examine the contents of the cargo and when, in pursuance of such a consent given by all the parties to the lis, the learned single Judge has passed the orders, issuing directions to the Customs Authorities and the Pollution Control Board, the Appellant cannot challenge the said order of the learned single Judge, since he has also consented for passing of the same order. They would further argue that in due compliance with the directions of the learned single Judge and on the recommendations of the Expert Body, the Appellant was directed to re-export the cargo, which cannot be challenged by the Appellant.
17. The learned Counsel appearing for the seventh Respondent, who has been impleaded as a party Respondent to thesefjlo-ceedings would submit that he was not made as a party to the original writ proceedings. It has been repeatedly submitted on behalf of the seventh Respondent that the Appellant never informed the seventh Respondent about the re-export of the cargo to UAE and would further submit that the seventh Respondent has never instructed the Appellant to send the cargo to UAE. It has been submitted on behalf of the 7th Respondent that by mistake, the cargo destined for somebody else in a different country, was sent to India and having come to know about the mistake, they have addressed letters to the Customs Officials at India regretting their mistake.
18. In view of the above pleadings and arguments, the following points would arise for consideration in these matters:
1. Whether the Writ Appeal and writ petitions filed by the Appellant are maintainable under law?
2. To what relief the parties are entitled?
POINT No. 1:
19. On a perusal of the materials placed on record and from Para No. 16 of the order passed by the learned single Judge, it is seen that the learned senior counsel appearing for the Appellant has submitted before the learned single Judge that he has no objection to the prayer of the writ Petitioner being allowed to the limited extent of permitting the containers to be shifted to a private bonded warehouse and after such shifting a team of experts as suggested by the Central Pollution Control Board examining the samples of the cargo to arrive at a final conclusion and if the conclusion so arrived at is that the cargo contained hazardous waste, it could be disposed of in a manner as suggested by the team of experts and if the finding is otherwise, the material could be disposed of even by the Customs authorities, as abandoned material. Pursuant to the consent given by all the counsel in the matter, the learned single Judge has passed the order dated 21.9.2007, which is extracted supra and thereafter pursuant to the directions of the learned single Judge, the Central Pollution Control Board examined the cargo on 7.11.2007 and have submitted a report dated 16.11.2007, recommending that the cargo contains highly hazardous substances and disposal of the same in any manner will lead to pollution and that the cargo has to be re-ex-ported to the country of its origin.
20. When, admittedly, the Appellant himself has consented to pass such an order of appointing a team of experts and even to dispose of the cargo in the manner suggested by the team of experts, after the recommendations of the Expert Body, the Appellant cannot now take a ''U'' turn and contend otherwise, as if he has not consented for such an order to be passed by the learned single Judge. On this sole ground, the writ appeal and the writ peti-tidnj filed by the Appellant are liable to be dismissed as not maintainable.
21. However, to give a quietus to the entire issue, we shall now proceed to discuss and decide the cases on merits also. This point is answered accordingly.
POINT No. 2:
22. The learned senior counsel appearing for the Appellant has argued that the appel-lant is not an ''importer'' within the true meaning of Hazardous Waste (Management and Handling) Rules, 1989, which has been stiffly opposed on the part of the learned Additional Solicitor General of India.
23. To assess the case in hand, we shall now see the definition of ''import'' and ''importer'' provided for in Sections 2(23) and 2(26) of the Customs Act, 1962, which read as follows:
2(23): "import", with its grammatical variations and cognate expressions, means bringing into India from a place outside India;
2(26): "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer.
24. Now we shall see the definition of the term ''import'' and ''importer'' provided under Rules 3(17) and 3(18) of the Hazardous Wastes (Management and Handling) Rules, 1989, which read as follows:
3(17) "import" with its grammatical variations and cognate expressions, means bringing into India from a place outside India;
3(18) "importer" means an occupier or any person who imports hazardous wastes;
25. The term ''Municipal Waste'' is defined in Chapter 38 of the First Schedule of the Customs Tariff Act as:
Waste of a kind collected from households, hotels, restaurants, hospitals, shops, offices etc., road and pavement sweepings, as well as construction and demolition waste. Municipal waste generally contains a large variety of materials such as plastics, rubber, wood, paper, textiles, glass, metals, food materials, broken furniture and other damaged or discarded articles.
26. For further discussion in the matter, it is to be seen whether the cargo imported to India is a hazardous substance or not. Voluminous material has been filed before this Court by the Pollution Control Board and the Customs officials, showing even the photographs of the cargo. The report of the Expert Body of the Pollution Control coupled with the photographs of the cargo depicts a sorrowful picture that it contains contaminated material and if destuffed to the Indian land would cause danger to the environment. Therefore, in view of the factual aspects of the case, we have no hesitation to hold that the imported cargo is an hazardous substance.
27. The Bills of Entry available on record would show that the Appellant has placed orders with the 7th Respondent for supply of waste paper and even it has been admitted by the Appellant that they have placed orders with the 7th Respondent. But, instead of supplying waste papers as has been ordered by the Appellant, municipal waste has been shipped to India by the 7th Respondent, by mistake or otherwise and having been pointed out by the officials, the Appellant has withdrawn his bills of entry and thereupon, exported the same to Ajman, mentioning their name as ''exporter'' through the first Respondent and the booking orders filed by the Appellant before the first Respondent, which are available at page Nos. 19 and 28 of the typed set filed by the first Respondent, would justify this. Therefore, we have no hesitation to hold that the Appellant is an ''importer'' within the parameters of law and thus, the arguments advanced contra on the part of the Appellant are rejected. Concluding this aspect, now we shall proceed to discuss and decide the other aspects involved in the case.
28. It is to be pointed out that the Ministry of Environment and Forest, vide their Memorandum dated 24.3.2005, alerted the Customs Department, and all Pollution Control Boards, stating that representations have been received from Environmental agencies of UK and Netherlands regarding illegal shipments of recovered waste paper contaminated or mixed with garbage/municipal solid waste to India and instructed the Customs Authorities to inspect and ensure that at all the Ports of entry, only properly segregated paper, paper board and paper product wastes enter the country, without being contaminated with municipal waste.
29. The Central Pollution Control Board, during their visit to the Tuticorin Port, recommended for re-export of the consignments to the country of origin (i.e. USA) imported by the Appellant/ITC as stipulated under Rule 15 of the Hazardous Waste (Management and Handling) Rules, 1989 as amended, as per which the importer is required to ensure import of only such wastes permitted under these Rules for the purpose of reprocessing, using environmentally sound technologies but not for ultimate disposal. Therefore, the Appellant cannot disown the responsibility of the consignment having been imported primarily and later found to be ''illegal traffic'' as per the above said Rules.
30. Since the Appellant and the third Respondent have engaged the services of the first Respondent to provide the containers and also sent their consignment to UAE in those containers, when it has been rejected or refused at UAE, the liability fastens on them to act legally. But, unfortunately, a flimsy stand was invented by the Appellant ITC that they were not the shippers of the cargo and that the cargo was shipped to the consignee M/s JDH International LLC in Ajman by Evergreen Specialities, USA and that the cargo was originally wrongly shipped to them by Evergreen Specialities, USA. At this juncture, it is to be pointed out that during the course of arguments before us, the specific stand of the Evergreen Specialities, USA is that the cargo was sent to Ajman by the Appellant without their knowledge and at no point of time, they were informed by the Appellant that the cargo was sent to UAE. It clearly indicates that the Appellant is playing a double game to save his skin.
31. Even from the materials placed on record, it is seen that M/s . Evergreen Specialities, USA themselves have also admitted that the cargo meant for somebody else in some other country was shipped to India. If it is the case, the Appellant should have sent back the cargo to the cousntry of origin that is to M/s. Evergreen Specialities, USA as has been directed by the officials and the act of the Appellant in sending the cargo to UAE, that too without the consent of the original owner M/s. Evergreen Specialities, USA and breaching the directions issued by the Customs officials cannot be appreciated. What made them to send the cargo to UAE instead of USA that is to M/s. Evergreen Specialties is a million dollar question that is left unanswered by the Appellant .
32. When, admittedly, the Appellant and the third Respondent have engaged the empty containers of the first Respondent/Norasia Containers Lines Limited for their own purpose of sending the shipment, definitely, the first Respondent is entitled to collect. all the charges incidental thereto from the Appellant and the third Respondent.
33. Having committed an illegality and inventing a reason for sending the cargo to UAE instead of to USA i.e. to the 7th respon-dent/M/s. Evergreen Specialities, that too without offering any legally sustainable ground for doing the same, the Appellant is fighting a losing battle, only with a malafide intention of causing loss and damage to the first Respondent, which should not be allowed to happen, in the interest of justice.
34. When the exporter of the cargo is at USA, the first Respondent himself has acted as the master of it and when the goods destined to the first Respondent are not the ones for which they have placed orders, but a sheer municipal waste, the first Respondent should have complied with the directions of the Customs Officials of India scrupulously and in their true letter and spirit. The Appellant, having received an undesired cargo from M/s. Evergreen Specialities, should have shunted it back to them only. As far as the first Respondent is concerned, he has every reason to take and consider the Appellant as the owner/shipper of the cargo, since he has no relationship of whatsoever with the seventh Respondent/ M/s. Evergreen Specialities, USA. The Appellant should have cleared the amounts, which he is legally payable to the first Respondent and if at all, he thinks. that he was forced to shelve out the same only beacuse of the fault committed by M/s. Evergreen Specialities or anybody else, the legal doors are always open for them to proceed against them. But escap-ing their liability of paying the amounts to the first Respondent, since it is the Appellant and first Respondent, since it is the Appellant and the third Respondent who have engaged the containers of the first Respondent, cannot be supported, since it is not the case of the Appellant and the third Respondent that they have not engaged the containers of the first Respondent for shipment of the cargo to UAE.
35. The first Respondent cannot be mulcted with the loss for the fault committed by the Appellant in sending the cargo to UAE, resulting in rejection of the same at the hands of the Customs officials of UAE.
36. At this juncture, it is to be pointed out that the Appellant has tried to give a different colour, trying to fasten liability on the first Respondent, who has lent his containers to the Appellant and the third Respondent. In Ground No. 10 of the appeal grounds, it has been averred by the Appellant that unless the Appellant or the consignee M/s.JDH International LLC took delivery of the cargo from Ajman Port within seven days, the first Respondent would have declared it as ''abandoned cargo'' and sold the same through private/public auction and instead of doing so, the first Respondent has brought back the goods to Tuticorin. It is funny to see that what a ''municipal waste'' would fetch for the first Respondent, when he is urging for the charges or other expenses involved in ''importing'' the cargo. The Appellant and the third Respondent have full knowledge that the cargo is nothing but a municipal waste and have sent it to UAE and now when the cargo was rejected by the UAE customs officials, the Appellant and the third Respondent are finding ways to throw the blame on the first Respondent who has just carried on his obligation of providing the containers and inventing legally unsustainable grounds, the Appellant and the third Respondent are trying to cheat the first Respondent by denying him his due.
37. Another ground urged on behalf of the Appellant is that when once the permission was accorded to unload the 35 containers at Tuticorin Port, neither the Customs officials nor the Port Trust nor the PSA Sical, who are the in-charge of the container yard at Tuticorin Port took any step to dispose of the consignment. When admittedly, the consignment is nothing but a municipal waste and disposing the same in any manner will cause environmental pollution and only with this purpose, the re-export of the cargo to the country of original was ordered by the customs officials, the Customs Officials and the Port Officials have correctly not allowed any kind of disposal of such a waste in the Indian waters or soil, which cannot be allowed to be commented otherwise by the Appellant, particularly with the sole aim of washing their hands at the cost and expenditure of others. For these reasons, the judgment of the Honourable Apex Court delivered in
38. At this juncture it is also to be noted that during the course of hearing, the Appellant has came forward with a proposal that they have now found out new buyers in Bangladesh and also from Tuticorin, India and in order to comply with the directions of the learned single Judge and the Pollution Control Board''s recommendations to re-export the cargo, the cargo contained in the present containers has to be segregated into plastic waste and paper waste and then only the buyers will accept the same. He has also submitted that buyers are available in India to buy plastic waste and paper waste. In view of the above request, a direction was given by the First Bench of this Court directing the Customs officials to get instructions and file an affidavit regarding segregation of cargo. But, this request of the Appellant cannot be complied with since the Pollution Control Board has seriously objected the same as the cargo is a Sheer municipal waste and dealing with the same in any manner would spoil the environment in India. We appreciate the efforts put in by the Central Pollution Board in this matter in not allowing or permitting any kind of pollution into the Indian soil.
39. The entire reading of the materials would clearly show the sheer negligence exhibited by the Appellant and their way of finding ways to throw the blame on somebody or other. When, as has already been pointed out supra, the Appellant found that the so-called cargo was not the one for which they have placed orders and when the Customs Officials have specifically directed them to re-export the cargo to the country of origin that is USA, they should have shunted it back to the sender, instead of trying to send it to another country, where, according to him, the true purchaser is available, that too without the knowledge of the original sender M/s. Ever-green Specialities, USA.
40. It is really painful rather pathetic to note that the foreign developed countries are searching for dumping yards to dump their municipal waste and are dumping their municipal waste somehow or other in the waters or soil of developing countries and thus are trying to enjoy a pollution free surroundings in their countries. In the case on hand, the ap-, pellant, instead of trying to secure the pollution free environment in our country, by scrupulously following the instructions given to them by the customs officials and the Pollution Control Board are raising legally unsustainable grounds, only to escape the legal liability of paying the amounts to the first Respondent, which would not be allowed to happen.
41. The first Respondent has prayed in the writ petition to direct the authorities to take steps to destuff the cargo from his containers as provided under Sections 61 and 62 of the Major Port Trust Act and Sections 30 and 48 of the Customs Act and release the empty containers to him.
42. Sections 61 and 62 of the Major Port Trusts Act, 1963 read as follows:
Section 61.:. Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged -
(1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty- four hours after the landing of the animals or goods as the Board may think fit, sell by public auction or in such case as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner, such goods or so much thereof as, in the opinion of the Board, may be necessary -
(a) if any rates payable to the Board in respect of such goods have not been paid, or
(b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or
(c) if any lien of any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charge has made to the Board an application for such sale.
(2) Before making such sale, the Board shall give ten days'' notice of the same by publication thereof in the Port Gazette, or where there is no Port Gazette, in the Official Gazette and also in at least one of the principal local daily newspapers.
Provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of.
(3) If the address of the owner of the goods has been stated on the manifest of the gods or in any of the documents which have come into the hands of the Board, or is otherwise known notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent.
(4) Notwithstanding anything contained in this section, arms and ammunition and controlled goods may be sold at such time and in such manner as the Central Government may direct."
Section 62: Disposal of goods not removed from premises of within time limit -
(1) Notwithstanding anything contained in this Act, where any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month from the date on which such goods were placed in their custody, the Board may, if the address of such owner or person is known, cause a notice to be served upon him by letter delivered at such address or sent by post, or if the notice cannot be so served upon him or his address is not known, cause a notice to be published in the Port Gazette or where there is no Port Gazette, in the Official Gazette and also in at least one of the principal local daily newspapers, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction or by tender, private agreement or in any other manner.
Provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this Sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board.
(2) The notice referred to in Sub-section (1) may also be served on the agents of the vessel by which such goods were landed.
(3) If such owner or person does not comply with the requisition in the notice served upon him or published under Sub-section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing sell by tender, private agreement or in any other manner after giving notice of the sale in the manner specified in Sub-sections (2) and (3) of Section 61.
(4) Notwithstanding anything contained in Sub-section (1) or Sub-section (3) -
(a) the Board may, in the case of animals and perishable or hazardous goods, give notice of removal of such goods although the period of one month or, as the case may be, of two months specified in Sub-section (1) has not expired or give such shorter notice of sale and in such manner as, in the opinion of the Board, the urgency of the case requires;
(b) arms and ammunition and controlled goods may be sold in accordance with the provisions of Sub-section (4) of Section 61.
(5) The Central Government may, if it deems necessary so to do in the public interest, by notification in the Official Gazette, exempt any goods or classes of goods from the operation of this section.
43. Likewise, Sections 30 and 48 of the Customs Act, 1962 read as follows:
Section 30. Delivery of import manifest or import report -
(1) The person-in-charge of -
(i) a vessel; or
(ii) an aircraft; or
(iii) a vehicle,
carrying imported goods or any other person as may be specified by the Central Government, by notification in the Official Gazette, in this behalf shall, in the case of a vessel or an aircraft, deliver to the proper officer an import manifest prior to the arrival of the vessel of the aircraft, as the case may be, and in the case of {a vehicle, an import report within twelve hours after its arrival in the customs station, in the prescribed form and if the import manifest or the import report or any part thereof, is not delivered to the proper officer within the time specified in this Sub-section and if the proper officer is satisfied that there was no sufficient cause for such delay, the person-in-charge or any other person referred to in this Sub-section, who caused such delay, shall be liable to a penalty not exceeding fifty thousand rupees.
(2) The person delivering the import manifest or import report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
(3) If the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented.
Section 48: Procedure in case of goods not cleared, warehoused or transshipped within thirty days after unloading - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transshipped within thirty days from the date of the unloading thereof at a customs station or within such further time a the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof; Provided that -
(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time;
(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct.
44. On a conjoint reading of all the above provisions would make it clear that these provisions deal with the goods which can be sold and the procedure to be followed for disposing of goods which are not cleared, warehoused or transshipped. But, as has been repeatedly observed supra, the cargo is a municipal waste shipped to India, which cannot be sold or allowed to be disposed of in any manner in India, since it will cause much danger to the Mother Nature, as has been correctly observed by the Customs Department and the Pollution Control Board.
45. It is also necessary to point out that before the learned single Judge all the parties have consented and agreed to constitute an expert body of the Central Pollution Control Board for examining the cargo and submitting the report and also agreed that they will abide by the report of such an Expert Body. When the Central Pollution Control Board, pursuant to the directions of the learned single Judge, issued with the consent of all the parties, has filed a report, recommending to re-export the goods and consequently, the Customs officials have passed an order dated 23.11.2007 to re-export the goods, the Appellant has filed the Writ Petitions No. 5989 and 5994 of 2008.
46. Having already accepted to constitution of such an expert body before the learned single Judge, the Appellant is estopped from challenging the said order passed by the learned single Judge now. On a careful perusal of the entire materials on record, we are not able to find any illegality or irregularity in the recommendations made by the Expert Body i.e. the Central Pollution Control Board, to re-export the hazardous goods to the country of its origin and the Customs officials, accepting the recommendations of the Expert Body, have issued the consequential order, directing the Appellant to re-export the so-called cargo to the country of its origin. Therefore, there are no merits in both the above writ petitions and accordingly, they are liable to be dismissed along with the Writ Appeal. Point No. 2 is answered accordingly.
47. As we have discussed at length, the first Respondent has resorted to all kinds of illegalities in this case and giving a simple go-bye to the directions issued by the Customs Officials and also without even the knowledge of the original sender viz. M/s. Ever-green Specialities, USA, they have sent the goods to UAE, resulting in rejection there and is exhibiting all its talents and business tactics to find a scapegoat to shift their burden and responsibility onto them.
In the result,
(i) W.A.(MD) No. 721 of 2007, W.P.(MD) No. 5989 of 2008 and W.P.(MD) No. 5994 of 2008 are dismissed with a total cost of Rs. 50,000/= (Rupees Fifty Thousand Only) to be paid by the Appellant, who is also the Petitioner in both the writ petitions, to the Tamil Nadu Legal Services Authority, Chennai within a period of two weeks from the date of receipt of a copy of this order.
(ii) The 2nd Respondent/Union of India, represented by the Secretary to the Ministry of Finance, the 4th Respondent/Chairman of the Tuticorin Port Trust, the 5th Respondent/Commissioner of Customs and the 8th Respondent/Central Pollution Control Board, Bangalore, are directed to take all steps to de-stuff the cargo from the containers of the first Respondent at the cost and expenditure of the Appellant and see that the first Respondent reexports the cargo to the seventh Respondent himself that is the country of origin.
(iii) We make it clear that we are not interfering or dealing with the aspect of damages claimed by the first Respondent from the Appellant and others, since it is a matter to be decided by a civil forum, wherein already a suit in O.S. No. 7 of 2007 is pending. What we direct is that the containers of the first Respondent should be handed over to him immediately by the Appellant and the third Respondent, after destuffing its contents and in the process the land and waters of India should be protected from any sort of pollution under the supervision of the Central Pollution Control Board and the Customs Officials at the cost and expenditure of the Appellant.
(iv) Since at each and every stage of this matter we found gross violation of directions issued by the Customs Officials and Central Pollution Control Board by the Appellant with dishonest intention and sheer negligence and only with an aim of augmenting his business and to gain wrongfully at the cost of others and the Mother Nature, we direct the second Respondent/Government of India, represented by its Secretary to the Ministry of Finance, New Delhi and the 5th Respondent/Commissioner of Customs, Tuticorin to initiate legal proceedings against the concerned officers at the helm of affairs of the Appellant who have masterminded such illegal ideas, posing danger to the Mother Nature in India, within twelve weeks from the date of receipt of a copy of this judgment and report compliance to this Court, so as to prosecute them in accordance with both criminal and civil laws of the country, so as to uphold the majesty of law and justice and to serve as an eye-opener for the Appellant not to repeat such things in future.
