TaxTMI 
TaxTMI 
2012 (12) TMI 983
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....n any particular batches of its products only after following due process of law. The petitioner further seeks a writ of prohibition restraining the respondents from taking any action against it with regard to its products on the ground that they contain lactic acid and a writ of mandamus directing the respondents to withdraw all the actions and decisions on the basis that its products contain lactic acid. The petitioner did not press the challenge to section 38 of the Food Safety and Standards Act, 2006. 3. For the purpose of this petition, it is not necessary to refer to the details furnished by the petitioner in respect of their contention SRP 3/28 ASWPL28980.12 that their manufacturing process conforms to very high and stringent standards of quality and hygiene. The petitioner manufactures confectionery products, including sugar boiled confectionery which are sold under the trade name "Kaccha Mango Bite" and "Mazelo". The said products have been manufactured and sold by the petitioner since the year 2004 and 2008. This is the first time that action has been taken against the petitioner on the ground that its products contain lactic acid. To the knowledge of the respondents, ....
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....dated 1st October, 2012, which included certain forms, letters from the Food Safety Officer, seizure memo and the form of the order of seizure. The same are annexed as Exhibits C-1 to C-8 to the petition which have also been impugned in the petition. The action was, therefore, on two grounds viz. that the products contained lactic acid, which was impermissible and that the samples contained more than the permissible amount of colour. The main question which arises in this petition is whether the use of lactic acid is impermissible under the said Act, Rules and Regulations. 6. The question of the products containing more than the permissible limit of colour cannot be decided by the writ Court. The question in that regard is limited to the manner in which the authorities ought to determine the same. The respondents have in fact fairly examined this aspect on the basis of the samples taken from the relevant batches. In other words, the question of the extent of colour was based on the samples taken from the various batches. At the time of the pronouncement of this judgment, Mr. Shinde stated that out of forty eight batches of the said products that were seized, thirty nine batches c....
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....ceived from the Food Safety Officer from other locations, which are annexed as Exhibits "L" and "M". The same are challenged in the petition. Exhibit "O" is a list of the impugned notices, letters, memos, documents and laboratory analysis reports. 9. As we noted earlier, the main question in this petition is whether the use of the lactic acid in the petitioner's products viz. sugar boiled confectionery is permitted under the said Act, Rules and Regulations. The petitioner does not deny the fact that its products contain lactic acid. The petitioner contends that lactic acid is a SRP 9/28 ASWPL28980.12 permissible ingredient in its sugar boiled confectionery products. It is not the respondents case that the quantity is in excess of the prescribed limit. The respondents contend that it is not a permissible ingredient. 10. In support of his submission that lactic acid is a permissible ingredient in sugar boiled confectionery, Mr. Tulzapurkar relied upon the following provisions of the Act, 2006 and the Regulations :- The Act : "3. Definitions.- (1) In this Act, unless the context otherwise requires, (a) (k) "food additive" means any substance not nor....
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....ent shall not be less than 4 per cent by weight on dry basis.ig (2) Butter toffee- fat content shall not be less than 4 per cent by weight on dry basis. Provided that it may contain food additives permitted in these regulations including appendix 'A'. Provided further that if artificial sweetener has been added as provided in Regulation 3.1.3, it shall be declared on the label as provided in regulation 3.1.3, it shall be declared on the label as provided in Regulation 2.4.5 (24, 25, 26, 28 & 29) of Food Safety and Standards (Packaging and Labeling) Regulations, 2011." Appendix-A referred to in the proviso opens as follows : APPENDIX A LIST OF FOOD ADDITIVES List of Food Additives in Food Products: Food products may contain additives as specified in the SRP 12/28 ASWPL28980.12 regulations and in the following tables." Appendix A then sets out several tables. Suffice it to note at this stage that the title to Table 13 is "LIST OF FOOD ADDITIVES FOR USE IN ...... SUGAR BOILED CONFECTIONERY ....". Item G of Table 13 lists the "Neutralising agents/Acidulants". Lactic acid is not one of them. This is an aspect which Mr. Shinde, the learned GP appearing on behalf of the res....
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.... of column No.2 and column No.4 instead of column No.3. The confusion arises on account of the column containing the serial numbers also being numbered as 1 and the Regulation not having accounted for that while referring to the column numbers. 11. The provisions of Regulation 3 relied upon by Mr. Tulzapurkar supports the petitioner's case that lactic acid is a permissible ingredient in sugar boiled confectionery. Firstly, it must be noted that Regulation 3.1.1(1) permits the use of food additives in food products as specified in the "regulations and in Appendix A". The use of the word "and" in this regulation does not indicate that the food additive must be stated to be permissible in food products both in SRP 15/28 ASWPL28980.12 the regulations and in Appendix A. It is sufficient if it is permitted in either the regulations or in Appendix A. Mr. Shinde was unable to indicate any reason to the contrary. Mr. Tulzapurkar's submission is fortified by the proviso to Regulation 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 additiv....
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....sioner (Food), Food & Drug Administration stated :- "The petitioner is manufacturing the same by using Acidulent (270) i.e. Lactic Acid as one of the ingredient which is not permitted in the sugar boiled confectionery. The Acidulent (270) is a Lactic Acid (L-, D- & DL-) as per the International Numbering system (INS) for food additives, so Lactic Acid is food additives used in food as acidulent, buffering agents, Neutralising agents." It is important to note that it is admitted that lactic acid is a food additive and is used in food as an acidulant, buffering agent, neutralising agent. It is not the respondents case that the petitioner used lactic acid otherwise. There is no dispute that the petitioner uses lactic acid as a buffering agent. 15. Mr. Tulzapurkar sought to rely upon facts to establish that lactic acid is used world wide in such products. He also sought to rely upon the products of various other manufacturers in this country whose products use lactic acid. Exhibit-Q to the petition contains details in this respect. It is indeed curious that the respondents have not taken any action against any of the other manufacturers over the years. They have not even indicated t....
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....ntained in Regulation 3.1.12. 19. In fact, as rightly submitted by Mr. Tulzapurkar, the Table contained in Regulation 3.1.12 indicates the contrary as it expressly refers even to standardized food products. For instance, Sr. No.12 of the Table refers to processed cheese. Processed cheese is a standardized item and is expressly dealt with in Regulation 2.1.6(2) which opens with the words "2. Processed Cheese means the products obtained by grinding........" Sr. No.10 in the Table also refers to bread which is also a standardized item. Table 1 of Appendix SRP 21/28 ASWPL28980.12 A refers to a list of food additives for use in bread and biscuits. Milk preparations are referred to in Table 14 of Appendix A. The contention, therefore, that products / food items referred to in the various tables in Appendix A do not fall within the ambit of the Table contained in Regulation 3.1.12 is, therefore, not well founded. 20. Mr. Tulzapurkar submitted that the petitioner's case is also supported by the provisions of the Bureau of Indian Standards. The note at the foot of Regulation 3.1.12 requires lactic acid used as an acidulant in miscellaneouos foods to conform to the specifications laid....
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....strictions on the use of sequestering and buffering agents :- Unless otherwise provided in these rules the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of foods specified in the corresponding entry in column (2) of the said Table, in concentration not exceeding the proportions specified in the corresponding entry in column (3) of the said Table :- Table Name of Group of food Maximum sequestering and level of use buffering agents (parts per million) (ppm) mg./kg. 10. DL Lactic acid As acidulant in Limited by (food grade) miscellaneous food G.M.P. 10A. L(+) Lactic As acidulant in Limited by Acid (food grade) miscellaneous food G.M.P. 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.) The provisions of these entries in the table are identical to those of serial Nos.8 and 9 in the Table in Regulation 3.1.12. The Note at the foot thereof is also identical to the Note at the foot of the Table in Regulation 3.1.12. 23. The provisions of the relevant rules under t....