TaxTMI 
TaxTMI 
2014 (5) TMI 483
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.... that the goods do not contain the name, and, address, of *: the manufacturer and also the date of manufacture and, hence, .the remaining shelf life cannot be ascertained as per the DGFT Notification dated 30.07.2011 and, therefore, the sample could not be drawn for analysis. The importer replied that the items were imported in bulk packs and they have to be fumigated for five days to kill insetcs and after further processing, they have to be packed into retail pacs and exemption is available to them as per clause (f) and (g) of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (for short „PFA Rules‟) Adjuction proceedings were initiated and the Additional Commissioner of Customs (Group - I) by order dated 2.8.2011, by confiscating the goods under Section 111 (d) of the Customs Act, 1962 and allowed redemption for the purposed of re - export on payment of fine of Rs. 2 lakhs and penalty of Rs. 1 Lakh. Challenging the said order, the 1st respondent herein preferred appeal and the commissioner of Customs (Appeals), by order dated 26.8.2011, upheld the order of confiscation, but reduced the fine and penalty to Rs. 1,00,000/- and Rs. 50,000/- respectively and decla....
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....label the pack with the date of 11 manufacture , ands hence, the impugned order is liable to be set aside. 4. Per contra, the learned counsel for the 1st respondent submits that the 1st respondent is a genuine importer and it has imported the consignment of Oats for home consumption in bulk packs of 20 kgs. each and the label contains the batch number, best before date, country of origin, details and manufacture‟s name and the packs are not sold as such to retail customers but these are subjected to an elaborate process of re - packing into 500 gms./1 kg. cartons and the 1st respondent has intended to repack the same in the customs bonded premises and after re - packing, they would ensure that all the details required under the PFA Rules as well as DGFT Notification are provided on the retail packs and the Tribunal having found the prayer of the 1st respondent herein reasonable, accordingly directed the 1st respondent to re - pack and re - label the goods in a custom bonded premises and directed the port Authorities to test and certify the same and the impugned order is sustainable both on facts and in law. It is the further submission of the learned counsel for the 1st resp....
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....er clause (k) of Section 2 (ix) of the Prevention of Food Adulteration Act, 1954, being not labeled in accordance with the requirements of this Act or Rules made thereunder? 3) Whether the CESTAT is right to allowing appeal of the importer, which the Ministry of Health and Family Welfare, P.F.A. Division in their letter dated 2.12.2010 has clarified that all authorized officers / PHOs / APHOs are to check the claims on the labels as per the labeling requirements prescribed under PFA Rules, 1955 at their level itself and in case of any deficiencies on the label, such samples may either not be drawn if there are obvious deficiencies noted at the time of sampling or may be returned to Customs Authorities on the same day but may not be sent to authorized laboratories for analysis?" Substantial Questions of law Nos. 1 & 3: 1) Whether the CESTAT is right in allowing appeal of the importer when Rule 32 of Prevention of Food Adulteration Rules, 1955, specifies that the name of the goods, list of ingredient, name and complete address of the manufacturer, name and address of the importers, net content by weight or volume, Lot / Code / Batch Identification, date of manufacturing and packin....
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....s (emphasis supplied). The products will also have to indicate the details of best before date on all food packages and attention was also drawn to the Ministry of Health Notification No. GSR 537 (E) dated 13th June, 2000. 8. The Director General of Health Services has sent a letter dated 30th Oct., 2002, to all Food (Health) Authorities, all Port Health Officers / Airport Health Officer, all Customs officers and all Central Food Laboratories and Public Analyst Laboratories with regard to the analysis of imported food products. It is stated among other things in the said letter that PHO‟s / APHO‟s and Customs officers are requested to check the labels of imported foods as per the provisions of the PFA Act and the Rules as made thereunder before the samples of such products are sent to the laboratories. As per clause (3), it is stated as follows : - "(iii) The Port Health Officers / Airport Health Officers and Custom Officer are requested to examine the labels of all the imported food products in their level itself. In case the deficiency on the label is not rectifiable such products should not be allowed to be imported into India. The labeling requirements which are n....
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....e label does not contain the manufacturer's full address and the date of manufacture, but, however, the details have been made available by the manufacturer now and in respect of wholesale packages, the provisions of clause (f) - dated of manufacture and clause (g) - date of expiry need not be specified in terms of proviso to Rule 32 of the PFA Rules and, hence, requested the original authority, viz., the Additional Commissioner of Customs - Group I to obtain PFA clearance and allow the 1st respondent / importer to clear the consignment at an early date. 11. It is the submission of the learned counsel for the appellant / Revenue that as per the Public Notice dated 17th March, 2001, Central Board of Excise & Customs Circular dated 25th Oct., 2001, it is obligatory on the part of the importer to comply with the labeling requirements under the PFA Rules and Packaged Commodities Rules, which include the details regarding the date of manufacture and the full name and address of the manufacturer and, admittedly, the said requirement has not been complied with by the 1st respondent / importer. It is the further submission of the learned counsel for the appellant that as per the lette....
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....d in the said case were 5 consignments of Hydro generated Edible Oil and it was subjected to analysis, wherein it was found that the goods do not conform to the standards of Vanaspati prescribed under the PFA Rules and, hence, the COmmisisoner of Customs passed an order of adjudication ordering confiscation of the goods under Section 111 (d) of the Customs Act with option to redeem on payment of nominal fine for the purpose of re - export and also payment of nominal find under Section 112 (a) of the Customs Act. In pursuant to the order passed by the Delhi High Court, samples of the goods imported were once again subjected to analysis by the Central Food Laboratory and it gave a report that the imported goods failed in the melting point test. The importer filed an appeal before the CESTAT and it was allowed and remanded to the adjudicating authority with a direction that the goods to be allowed to be reprocessed, and if found fit for Home consumption on reprocessing, it can be cleared for home consumption. A Division Bench of the Bombay High Court has considered the applicability of Section 143 of the Customs Act and held that where the application to ship the goods, which conform....
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....rvalued and, therefore, the Commissioner, of Customs ordered confiscation of the goods, confirmed the demand, besides levying penalty and also imposed personal penalty. The importer preferred an appeal to the Tribunal and it was dismissed. The importer filed an appeal under Section 130 of the Act before the High Court raising several substantial questions of law. The High Court dismissed the statutory appeal and further challenge was made by filing an appeal before the Hon‟ble Supreme Court by the importer contending that the statutory appeal was dismissed in limine non - speaking order, without answering the substantial questions of law. The Hon‟ble Supreme Court, in the above - cited decision, found that the High Court should have examined each question formulate in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and give its reasons for holding that the question is not a substantial question of law. After analyzing the facts, the Hon‟ble Supreme Court found that a bare reading of the six substantial questions of law, questions of law „b‟ to „g‟ were repeated in the appe....
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.... has held that department circulars and notifications in the fields of customs, central excise and service tax are not binding on the assessee or quasi - judicial authorities and the assessee can question the correctness of the same before a quasi - Judicial authority and also before a Court. 19. Learned counsel appearing for the 1st respondent has invited the attention of this Court to the guidelines issued by Food Safety & Standards Authority of India dated 23rd March, 2012, with regard to food import clearance proposed by Food safety & Standards Authority of India (in short „FSSAI‟) to its authorized officers and invited the attention of this Court to clause 1 (b), wherein it has been stated as follows :- "b) If date of manufacture is not given in the labels and only date of expiry / best before date / use by date is mentioned in the labels, then it may be verified from the relevant documents like certificate of analysis. However, if date of manufacture is in - built in the batch / lot number, the Authorised officer, FSSAI may verify the date of manufacture and satisfy himself with the documents provided by the imported along with the bill of entry. If require, he ....
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....e may be; (ii) Where an article of food is manufactured or packed or bottled by a person or a company under the written authority of some other manufacturer or company, under his or its brand name, the label shall carry the name and complete address of the manufacturing or packing or bottling unit as the case may be, and also the name and complete address of the manufacturer or the company, for and on whose behalf it is manufactured or packed or bottled; (iii) Where an article of food is imported into India, the package of food shall also carry the name and complete address of the importer in India; Provided that where any food article manufactured outside India is backed or bottled in India, the package containing the such food article shall also bear on the label, the name of the country of origin of the food article and the name and complete address of the importer and the premises of the packing or bottling in India." 23. In the bill of lading dated 14th May, 2011, the complete name and address of the manufacturer has been given and in the column for description of goods, it has been stated that "1040 bags, each with 20 Kgs. Net containing Rolled & Flaked Oats as per benefi....
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....s only and, therefore, clauses (f) and (g) of the PFA Rules would have application. The appellate authority, further found that the importer, without properly adhering to the PFA Act and the Rules framed thereunder, held that such norms should be strictly adhered to because it concerns that health of the public and no remedy post - import would serve the purpose. The appellate authority, having found that when the said import seriously concerns the health of the public and even a slightest deviation would cause grave injury to the law of the land, no compromise can be made to the norms fixed under the rules and citing the said reasons, confirmed the order passed by the original authority. 27. On appeal by the 1st respondent / importer before the CESTAT, the Tribunal has taken into consideration that the appellant / importer had given an undertaking to provide other details required for compliance with the local laws at the time of re - packing and re - labeling and will ensure that the Port Health Authorities to test the consignment before customs clearance and, thereby, permitted the 1st respondent herein / importer to re - pack and re - label the impugned goods in a Customs bond....
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....nd Packaged Commodities Rules, which include the name and full address of the manufacturer as well of the date of manufacture and in the absence of the same , testing of the food product cannot be done. Admittedly, in the case on hand, the label found on the packaged imported by the 1st respondent do not contain the full address of the manufacturer as well as the. date of manufacture and though it , contains, the details with regard to the date before which the product should be used, it serves no purpose for the reason that in the absence of date of manufacture being given, the. truth or otherwise of the best before date cannot be verified. Though it is claimed by the 1st respondent / importer, that before the original authority passed the order, the relevant details have been furnished the order passed by the original authority does not show as to whether such details have been furnished by the 1st respondent. 33. It is settled position of law, the facts narrated by the judicial / quasi - judicial authority are presumed to be correct and if the concerned person is of the view that the facts have not been properly narrated, or given in the order, his remedy, if any, is to approac....