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TaxTMI 
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2015 (8) TMI 291
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....by the Port Authorities - Respondent No.3 (Commissioner of Customs, Nhava Sheva Port, Mumbai) on the ground that Respondent No.2 (Food Safety and Standards Authority of India) (FSSAI) has refused to issue a No Objection Certificate (NOC) with respect to these wine products that are imported by the Petitioner. The ground on which the NOC has been refused is that the sample contains "Acidity Regulator: Tartaric Acid (INS334)" and "Antioxidant: ISO Ascorbic Acid (INS315)" which are not permitted as per Appendix A, Table No.3, Row No.14 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (hereinafter referred to as the "FSSR, 2011"). It is the case of the Petitioner that Tartaric Acid as well as Ascorbic Acid are ingredients that are permitted under the FSSR, 2011 and it is in these circumstances that the Petitioner has prayed that a writ of mandamus be issued directing Respondent No.2 to issue the NOC with respect to the imported consignments of wine as detailed in Exh. 'E' to the Petition and further directing Respondent No.3 to release the said consignments. In addition thereto, the Petitioner has also prayed that Respondent No.2 b....
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....in any food additive or processing aid unless it is in accordance with the provisions of the Act and the FSSR, 2011 framed thereunder. 7. Mr. Chagla thereafter invited our attention to the FSSR, 2011 which have been framed in exercise of the powers conferred under section 92(2)(e) read with section 16 of the said Act. More particularly, Mr Chagla drew our attention to Regulation 3.1.1 which deals with the use of food additives and stipulates that food products may contain food additives as specified in the FSSR, 2011 and in Appendix 'A'. Mr Chagla laid much stress on the word "and" appearing in Regulation 3.1.1(1) and 3.1.1(4) to contend that it was not necessary that an ingredient ought to find place only in Appendix 'A' before it could be used as a food additive. According to Mr Chagla, even if the product found place in the FSSR, 2011 and did not find a specific mention in Appendix 'A', the same could be used as a food additive. He drew our attention to Regulation 3.1.1(4) which provides for the use of food additives in different foods and stipulates that the food products mentioned therein may contain food additives permitted in the FSSR, 2011 and in Ta....
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....sumption. He submitted that Respondent No.2 has been set up under the provisions of Section 4 of the said Act as the Nodal Regulatory Body for all matters related to food. The objective of Respondent No.2 is to ensure safety and wholesomeness of food in accordance with the requirements of the Indian populace, and for the purposes of meeting the said objective, Respondent No.2 has been obligated with various mandatory duties and functions under different provisions of the Act. Mr Pracha submitted that the rejection letters issued by Respondent No.2 were accompanied by reports from Food Analysts for various products. The samples of the subject products were tested by two notified laboratories in the months of November and December 2014 and the results not only show that those products contain Tartaric Acid (INS 334) (Acidity Regulator) but also Ascorbic Acid (INS 315) (Anti-Oxidant). He submitted that on account of the fact that the products of the Petitioner contained prohibited additives, rejection letters were issued to the Petitioner and the same are valid and within the ambit of the said Act as well as the FSSR, 2011 framed thereunder. He submitted that Appendix A, Table 3, Row ....
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....sed Integrated Food Law, with certain modifications. The Integrated Food Law was named as The Food Safety and Standards Bill, 2005. The main objective of the Bill was to bring a single statute regime relating to food and to provide for a systematic and scientific development of Food Processing Industries. The said Bill also contemplated the establishment of the Food Safety and Standards Authority of India (Respondent No.2), which would fix food standards and regulate / monitor the manufacturing, import, processing, distribution and sale of food so as to ensure safe and wholesome food for the people. This Bill was then passed by both Houses of Parliament and received assent of the President on 23rd August, 2006 and came on the statute book as The Food Safety and Standards Act, 2006. This Act provided [section 97] that with effect from such date as the Central Government may appoint in this behalf, the following enactments and orders stood repealed. 1. The Prevention of Food Adulteration Act, 1954 (37 of 1954) 2. The Fruit Products Order, 1955 3. The Meat Food Products Order, 1973 4. The Vegetable Oil Products (Control) Order, 1947 5. The Edible Oils Packaging (Regulation) Order....
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....lations made thereunder. Explanation.-For the purposes of this section, "processing aid" means any substance or material, not including apparatus or utensils, and not consumed as a food ingredient by itself, used in the processing of raw materials, foods or its ingredients to fulfil a certain technological purpose during treatment or processing and which may result in the non-intentional but unavoidable presence of residues or derivatives in the final product. 15. Section 19 clearly prohibits any food from containing any food additives or processing aids unless it is in accordance with the provisions of the Act and the FSSR, 2011 framed thereunder. The Explanation is not relevant for the purposes of the present judgment. 16. Section 22 of the Act deals with genetically modified foods, organic foods, functional foods, proprietary foods etc. and reads thus:- "22. Genetically modified foods, organic foods, functional foods, proprietary foods, etc. - Save as otherwise provided under this Act and regulations made thereunder, no person shall manufacture, distribute, sell or import any novel food, genetically modified articles of food, irradiated food, organic food, foods for special ....
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....d Cosmetics Rules, 1945; (2) "genetically engineered or modified food" means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered organisms obtained through modern biotechnology; (3) "organic food" means food products that have been produced in accordance with specified organic production standards; (4) "proprietary and novel food" means an article of food for which standards have not been specified but is not unsafe: Provided that such food does not contain any of the foods and ingredients prohibited under this Act and the regulations made thereunder." 17. Section 22 was brought into force on 18-08-2010 (except in respect of matters relating to the genetically engineered or modified food as explained in clause (2) of the Explanation). It provides that no person shall manufacture, distribute, sell or import any novel food, genetically modified articles of food, irradiated food, organic foods, foods for special dietary uses, functional foods, neutraceuticals, health supplements, proprietary foods and ....
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....ruit or other product; (iv) Corn Flour and such like starches; (v) Corn syrup; (vi) Canned Rosogulla (the cans shall be internally) lacquered with sulphur dioxide resistant lacquer; (vii) Gelatine; (viii) Beer; (ix) Cider; (x) Alcoholic Wines; (xi) Non-alcoholic wines; (xii) Ready-to-Serve beverage; (xiii) Brewed ginger beer; (xiv) Coffee Extract; (xv) Danish tinned caviar; (xvi) Dried ginger; (xvii) Flour confectionery; (xviii) Smoked fish (in wrappers); (xix) Dry mixes of Rosogollas; (xx) Preserved Chapatis; (xxi) Fat Spread; (xxii) Prunes; (xxiii) Baked food confections and baked foods; (xxiv) Flour for baked food; (xxv) Packed Paneer; (xxvi) Cakes and Pastries; and (xxvii) Prepackaged Coconut Water, Canned Rosogolla." (emphasis supplied) 19. As can be seen from Regulation 3.1.1(1), food products may contain food additives as specified in the Regulations and in Appendix 'A'. Regulation 3.1.1(4) permits the use of food additives in different foods and stipulates that the products mentioned therein may contain food additives permitted in the FSSR, 2011 and in Table 3 of Appendix 'A'. Alcoholic wines are at item (x) of Regulation 3.1.1(4). ....
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....um Disodium, Ethylene, Diamine tetra acetate (i) Emulsions containing refined vegetable oils, eggs, vinegar, salt, sugar and spices; (ii) Salad dressing; (iii) Sandwich spread or fat Spread 50 13. Fumaric acid As acidulant in Miscellaneous foods 3000 ppm NOTE :- DL Lactic acid and L(+) Tartaric acid shall not be added to any food meant for children below 12 months (The lactic acid shall also conform to the specification laid down by the Indian Standards Institution)." (emphasis supplied) 21. Pausing here, it must be noted that in Regulation 3.1.12(1), the column numbers should read column (2) instead of column (1), column (3) instead of column (2) and column (4) instead of column (3). The confusion arises on account of the column containing the serial numbers being numbered as (1) and the FSSR, 2011 not having accounted for that while referring to the column numbers. 22. Regulation 3.1.12(ii) deals with 'buffering agents' and stipulates that they are materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods. In the Table appended to Regulation 3.1.12, Tarta....
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....nce Tartaric Acid is not an ingredient finding place in Appendix 'A', Table 3, Row 14 (alcoholic wines), the same is a prohibited product and therefore, cannot be permitted to be used as a food additive in alcoholic wines. For the reasons stated earlier, we are unable to accept this submission because the Regulations themselves contemplate food additives being added to alcoholic wines [Regulation 3.1.1(4)] and Tartaric Acid is specifically listed as a buffering agent which could be used in food products provided the levels do not exceed 600 ppm [Regulation 3.1.12 r/w the Table appended thereto]. 25. We are further fortified in our interpretation by the fact that the Indian Bureau of Standards has come out with TABLE WINES SPECIFICATIONS (SECOND REVISION) which categorically states at paragraph 7.5 as under:- "7.5 Colour and Additives Table wines may contain permitted food additives (except colour) as defined by PFA/CODEX/JECFA. The limits shall be in accordance with EU guidelines." 26. These Table Wines Specifications clearly state that table wines may contain permitted food additives (except colour) as defined by PFA/CODEX/JECFA and the limits shall be in accordance wi....
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.... prevents oxidative deterioration of food and does not include sugar, cereal, oils, flours, herbs and spices. Regulation 3.1.5(2) puts a restriction on the use of anti-oxidants and inter alia stipulates that no anti-oxidant other than Lacithin, Ascorbic Acid and Tocopherol shall be added to any food unless otherwise provided in Chapter 2 and Appendix A of FSSR, 2011. This would clearly indicate that the FSSR, 2011 carves out an exception as far as Ascorbic Acid is concerned. In other words, Ascorbic Acid can be used as an antioxidant as set out in Regulation 3.1.5(2). This being the case and for the reasons that we have held that Tartaric Acid is a permitted food additive in alcoholic wines, we are of the view that even Ascorbic Acid is a food additive that is permitted to be added to alcoholic wines. 30. In the view that we have taken, we are squarely supported by a decision of another Division Bench of this Court (Coram: S.J. Vazifdar and R.Y. Ganoo JJ) in the case of Parle Biscuits Pvt. Ltd. v/s Food Safety and Standards Authority of India and others. 2013 (2) Mh.L.J. 409 : 2013 (3) Bom.C.R.314. An identical issue, though relating to Lactic Acid, came up for consideration befor....
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....ion 2.7.1 emphasized by us for it expressly states that the products "may contain food additives permitted in these Regulations including Appendix A." This makes it clear that the permissible food additives are those permitted in the regulation as well as in Appendix A. The use of the word "including Appendix A" makes this clear. 12. Lactic acid is admittedly not referred to in Appendix A, Table 13. The question is whether it is a permissible ingredient under any of the regulations. Regulation 3.1.12 provides that unless otherwise provided in the regulations, the sequestering and buffering agents specified in column No. 1 of the table set out therein may be used in the groups of foods in the corresponding entries in column No. 2 of the table. Serial No. 8 refers to lactic acid. The corresponding entry in column No. 3 is as acidulants in miscellaneous foods. In view of what we have held earlier, had sugar boiled confectionery been specifically referred to in column 3, it would have been the end of the matter for, in that event, it would be clear that lactic acid is a permissible sequestering and buffering agent in sugar boiled confectionery. The dispute arises, on account of the u....
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....learned senior counsel is accepted and the special leave petition is dismissed as withdrawn with liberty in terms of the prayer made. However, it is made clear that this order shall not be construed as a mandate to the High Court to entertain the review petition and if any such petition is filed, the High Court shall decide the same on its own merits." 34. Faced with the judgment of this Court in Parle Biscuit's case, Mr Pracha tried to distinguish the same on the ground that the product in question before the Division Bench in Parle Biscuit's case was sugar boiled confectionery which was a standardized product whereas in the present case, the alcoholic wines of the Petitioners were a proprietary food as contemplated under section 22 and therefore, product approval was required under the provisions of the Act. We are afraid we cannot accept this argument for the simple reason that this is not even a ground on which the rejection reports have been issued, one of which is at page 52 of the paper-book. The rejection report is addressed to the Respondent No.3 in which it is stated as under:- "This office is not in position to issue NOC of the product(s) mentioned above as the....