TaxTMI 
TaxTMI 
TaxTMI 
2014 (10) TMI 832
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.... must obtain a certificate from the second respondent under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations. 3. The case of the petitioner is that the said test certificate cannot be insisted from the petitioner and the product imported by him does not require such certification. In the affidavit filed in support of the petition, the petitioner would state that the betel-nuts being imported by him is in its raw ungarbled form and it has to be processed further for human consumption and in case of import of betel-nuts, the standard practice followed by the Customs Authority, all over India is to put the consignment imported to Plant Quarantine test (PQ test) in accordance with the provisions of clause 3(16) of the Plant Quarantine (Regulation of Import into India) Order, 2003, which is issued under sub-section (1) of the Destructive Insects and Pests Act, 1914. If the consignment passes the test, then the same is cleared by the Customs Authorities. The importer thereafter washes, cleans, dries and sorts the betel-nuts, after which the same are soaked in water for ten days. Thereafter, the betel-nuts are boiled, cleaned and d....
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....Kerala High Court has been followed by the learned Single Judges of the Kerala High Court in the writ petitions. 5. The learned counsel appearing for the second respondent by referring to the counter affidavit filed, submitted that the definition of primary food as contained in Section 3(zk) of the Food Safety and Standards Act means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its nature form, resulting from the growing, raising, cultivation, picking, harvesting, collection or catching and betel-nut falls within the definition of primary food, since it is an article of goods being produced by agriculture/horticulture. Further it is submitted that Section 3(j) of the Food Safety and Standards Act defines 'food' to be any substance, whether processed, partially processed or unprocessed which is intended for human consumption and includes primary food to the extent defined in clause (zk) of Section 3 of the Food Safety and Standards Act. Therefore, it is submitted that the definition of 'food' includes anything that is meant for human consumption directly or through manufacturing process. It is further sub....
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....8-2014 confirmed that the samples do not conform with the standards laid down for dry fruits and nuts. Therefore, it is submitted the prayer sought for in the writ petition is misconceived and cannot be granted. 7. In reply, the learned counsel for the petitioner referred to averments made in the affidavit filed in support of the writ petition more particularly in Paragraph 4 and submitted that the petitioner has imported raw ungarbled form of betel-nuts, which has to be processed further for human consumption. Further, it is submitted that unless and until the product imported by the petitioner is fit for human consumption, the same will not fall within the definition of 'food' as defined under Section 3(j) of the Food Safety and Standards Act and therefore, the impugned proceedings are liable to be set aside. 8. Heard the learned counsel appearing for the third respondent. 9. The issue which falls for consideration is whether the third respondent was justified in directing the petitioner to obtain a no objection certificate from the second respondent, who is the authority under the Food Safety and Standards Act, 2006. 10. The sheet anchor of the arguments ....
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....cribed Standard as per 2.3.47(5) Food Safety and Standards Act, 2006 and Rules (Food Products and Food Additive) Regulations, 2011 1. Extraneous Vegetable Matter DGHS NIL Not more than 1.0% 2. Damaged/Discoloured Units -do- 22.83% Not more than 2.0% 3. Acidity of extracted Fat expressed as oleic acid -do- 0.65% Not more than 1.25% 4. Total Flats Count Petrifilm AOAC 19th Ed 2012, 990.12 1200/ gm Not more than 40,000 Opinion : And I am of the opinion that the sample Areca Nuts (Betel-Nuts) does not conform to the standard laid down under [clause] 2.3.47(5) of FSS Act, 2006 and Rules, Regulations, 2011 thereof. 13. The petitioner was not convinced with the report submitted by the notified Laboratory and therefore, submitted an application for retesting the samples by sending the same to the Referral Laboratory. The request was favourably considered and the sample was sent to the Referral Laboratory at Mysore. The Referral Laboratory submitted a report dated 1-8-2014 and the operative portion of the report reads as follows. Sl. No. Quality Characteristics Method of the test used Result Prescribed Standard as per FSS (Food Products Standards and....
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....urt of Kerala arose out of two writ petitions filed by importers of ungarbled betel-nuts. At this juncture, it has to be pointed out that the bill of entry filed by the petitioner herein does not describe product as ungarbled betel-nut and only in the affidavit filed in the writ petition, the petitioner attempts to state that the product is ungarbled betel-nuts. This cannot be permitted, since the petitioner is bound by the declaration made by him in the bill of entry. Therefore, on that score itself, the decision of the Hon'ble Division Bench of the Kerala High Court, cannot be applied to the facts of the present case. 16. Be that as it may, in the case of Al Marwa Traders v. Assistant Commissioner of Imports, (referred supra), was rendered while interpreting the provisions of the Food Adulteration Act, 1954 and the Rules framed thereunder. 17. The learned counsel appearing for the petitioner submitted that both statutes are pari materia and there is no marked difference in the definitions of 'food' and 'primary food' and the test also are more or less similar. This contention raised by the petitioner does not merit consideration in the light of the fact that the Preve....
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....ny other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act. 2(xiia) "primary food" means any article of food, being a produce of agriculture or horticulture in its natural form. 19. Therefore, the petitioner cannot place reliance on the decision in the case of Al Marwa Traders (referred supra), to state that the decision could be squarely made applicable to the facts of the present case. 20. As noticed above, on facts in the case of Al Marwa Traders (referred supra), there was no dispute that the product which was imported was ungarbled betel-nuts. In the said context, the Division Bench of the Kerala High Court considered the definition under the erstwhile Prevention of Food Adulteration Act and rendered the decision and therefore, the decision of the High Court of Kerala is clearly distinguishable on facts and cannot be made applicable to the case of the petitioner. 21. In the light of the above discussion, this Court has no hesitation to hold that the definition of 'food' as contained under Section 3(j) of the Food Safety Act i....