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2019 (10) TMI 20
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....f goods so as to prevent deterioration in it's value as the seized goods is a perishable goods; And/or iii) To issue a writ in the nature of Certiorari for quashing the Seizure Order / Seizure Memo dated 06.02.2019 whereby and where under 23,660 Kgs. Of Betel Nuts (Arecanuts) as evaluated at Rs. 67,33,163/- and a truck bearing Registration No. TN 25 BC/5209 as evaluated at Rs. 23,00,000/- was seized on 06.02.2019 and all consequential proceedings in pursuance of same' And/or iv) To grant any other relief or reliefs to which the petitioners are entitled in the facts and circumstances of the case." 3. The case of the petitioner is that the petitioner no. 1 is engaged in business of trade of Betel Nuts grown in North Eastern Region of the country and the petitioner no. 2 is Transporter of goods. On 06.02.2019 when a vehicle bearing Registration No. TN 25 BC / 5209 engaged by petitioner no. 2 for carrying the Betel Nuts of petitioner no. 1, it was detained by the officials of the Customs, Forbesganj under the office of the Commissioner of Customs (Prev), Patna near Haria Bara Toll Plaza, Araria and seized the Betel Nuts approximately 23660 kg valued at Rs. 67,33,16....
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....ur of Betel Nut their country of origin cannot be determined. Further it is submitted that even samples sent by the respondent authorities to 'ADRF' have failed to determine it's country of origin. In this regard learned counsel refers Annexure 'R/4' and 'R/5' to the counter affidavit. 7. Further relying upon the judgment of the Hon'ble Division Bench of this Court in the case of Rara Brotheres Vs. M.L. Dey reported under [2000 (126) E.L.T. 425 (425)], Angou Golmei Vs Vizovolie Chakha Sang reported under [1996 (81) E.L.t. 440 (Pat.)] and that by the Division Bench of Bombay High Court in teh case of M.G. Abrol, Additional Collector of Customs., Bombay Vs. Amichand Vallamji reported under [2002 (149) E.L.T. 32 (Bom.)]. Learned counsel submits that when the respondents are not able to fulfil the legal requirement of valid search and seizure, having resorted to the contention that the sample of seized Areca Nuts were tested and found to be unsafe for food and human consumption and those are not confirming the standards under the Regulation No. 2.12 and 2.3.47 (5) of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011. 8. Learned counsel rel....
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....nfected with moulds inside and found difficult to study the internal characteristics to identify the country of origin. Final Conclusion "The sample of Arecanuts provided by the Assistant Commissioner, Office of the Assistant Commissioner, Customs (Prev) Division, Goriyare Chowk, Forbesganj, Bihar vide letter C.No. VIII(10) 317/Cus/Seiz/DPU/FBG/18-19/1517 dated 07.02.2019 under its seal has been tested and found to be White Whole Arecanuts of very bad quality. More than 50% of the nuts are infected with moulds inside. Such Arecanuts, irrespective of their country of origin, are not fit for human consumption/chewing." ii. Central Food Laboratory, Kolkata, Extension Centre Raxaul, Bihar in vide their Certificate No. INF/CFL/KOL/RXL/19/FEB-68 reported that:- "The sample of Betel Nut were tested as per Standard Food Safety norms falling under regulation No. 2.12 85 2.3.47 (5) of Food Safety Standards (Food Products Standards 85 Food Additives) Regulations, 2011 and found non-conforming to the standards due to presence of fungal growth, Damaged Betel Nuts and presence of Insects. Thus the sample is 'unsafe food' under Section 3(I)(ZZ)(ix) of FSS Act, 2006." ii....
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....azette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1-B) Where any goods, being goods specified under subsection (1-A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of - (a)certifying the correctness of the inventory so prepared; or (b)taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1-C) Where an application is made under sub-section (1- B),....
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....od Safety norms failing under regulation No. 2.12 & 2.3.47 (5) of Food Safety and Standards (Food Products Standard & Food Additives) Regulations, 2011 and found non-conforming to the standards due to presence of Damaged Betel Nuts and Added Colouring matter. Thus the sample is 'unsafe food' under section 3(I)(ZZ) (ix) of FSS Act, 2006". 23. The respondents have come out with a statement that in order to ascertain the country of origin of the seized goods further investigation is going on. So far as the two test reports are concerned, this Court finds that those are not saying about the country of origin of the Betel Nuts. 24. In the case of M/s Ayesha Exports Vs. The Union of India (C.W.J.C. No. 7589 of 2018), this Court has recorded the views of the learned co-ordinate Bench of this Court in M.J.C. No. 2185 of 2013 which had in fact been challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. CC7331 of 2014 but the same was dismissed on 08.05.2014 keeping the question of law open. 25. This Court reiterated that in absence of there being any standardized laboratory test for tracing the country of origin, established under some ....
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....Chief Commissioners of Customs / Customs (Prev.). All Chief Commissioners of Customs & Central Excise. All Commissioners of Customs / Customs (Prev.). All Commissioners of Customs (Appeals). All Commissioners of Customs & Central Excise. All Commissioners of Customs & Central Excise (Appeals). Subject: Import of edible / food products - regarding. *** Sir / Madam, Attention is invited to Board Circular No.58/2001-Cus dated 25.10.2001 which provides detailed guidelines for examination and testing of food item prior to its testing and clearance by Customs officers under the provisions of Prevention of Food Adulteration Act, 1954 (PFA Act, 1954). 2. Further, in terms of Para 8 of Chapter I A (General Notes Regarding Import Policy) of the ITC (HS) Classification of Export and Import items, import of all such edible/food products including tea, domestic sale and manufacture of which are governed by Prevention of Food Adulteration Act, 1954, shall be subject to all the conditions laid down in the aforesaid Act. Import of all these products will have to comply with the quality and packaging requirements as laid ....
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.... (b) All consignments of perishable items like fruits, vegetables, meat, fish, cheese, etc., will continue to be handled in terms of the guidelines contained in Para 2.3 of the Board's Circular No.58/2001-Customs dated 25.10.2001. (c) In respect of food items not covered under (a) and (b) above, the following procedure would be adopted in addition to the general checks prescribed under Para 2.1 of the Circular No. 58/2001-Cus, dated 25.10.2001: (i) Samples would be drawn from the first five consecutive consignments of each food item, imported by a particular importer and referred to Authorised Representative of FSSAI or PHOs, as the case may be, for testing to ascertain the quality and health safety standards of the consignments. (ii) In the event of the samples conforming to the prescribed standards, the Customs would switch to a system of checking 5% - 20% of the consignments of these food items on a random basis, for checking conformity to the prescribed standards. The selection of food items for random checking and testing would be done by the Customs taking into consideration factors like the nature of the food products, its source of origin....
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....all also be subject to the condition that at the time of importation, the products are having a valid shelf life of not less than 60% of the original shelf life. Shelf life of the product is to be calculated based on the declaration given on the label of the product, regarding its date of manufacture and the due date for expiry. Therefore, Customs shall ensure that this condition is complied with before allowing clearance of such consignments. 11. It is clarified that at certain ports / airports / ICDs / CFSs where Port Health Officers (PHO) under PFA, 1954 or Authorised officers under FSS Act, 2006 are not available, the samples will be drawn by Customs and the same may be got tested from the nearest Central Food Laboratory or a laboratory authorized for such testing by DGHS or FSSAI. 12. RMD shall develop an application software that incorporates the stipulation of testing of imported foodstuff and alerts the Customs officer to the effect the number of past shipments already tested and found fit warrants future shipments need not ordinarily be tested. This should apply regardless of port of import so long as the importer, supplier and item of import do not chang....
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....t of duty/differential duty leviable on the seized goods being provisionally released; ii. amount of fine that may be levied in lieu of confiscation under Section 125 of he Customs Act, 1962, at the time of adjudication of the case. While securing the same, the competent authority shall take into account the nature of the seized goods, the duty and charges payable on the said goods, their market price and teh estimated margin of profit; iii. Amount of penalties that may be levied under the Customs Act, 1962, as applicable, at the time of adjudication of the case. 2.3. Depending on the specific nature of a case, the competent authority may, for reasons to be recorded in writing, increase or decrease the amount of security deposit as indicated above. 3. In this context, attention is invited to the judgment dated 28.07.2016 of the Hon'ble Madras High Court in Writ Appeal No. 377 of 2016 in the case of Malabar Diamond Gallery Pvt. Ltd. Vs Additional Director General, DRI, Chennai & Ors. Wherein the Hon'ble Court has given sufficient discretion to the adjudicating authority to deny provisional release of goods in any case where the goods are smuggled ....
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.... F.No. 450/15/2017-Cus IV Government of India Ministry of Finance Department of Revenue (Central Board of Excise & Custom) ********** New Delhi, dated the/18th July, 2017 To, All Principal Chief Commissioners/Chief Commissioners of Customs / Customs (Preventive), All Principal Chief Commissioners/Chief Commissioners of Customs and Central Excise, All Directors General, All Principal Commissioners/Commissioners of Customs / Customs (Preventive), All Principal Commissioners/ Commissioners of Customs and Central Excise. Sir/Madam, Sub: Detailed guidelines for re-testing of samples- reg. World Trade Organization (WTO) negotiated Trade Facilitation Agreement (TFA), which aims at simplifying the trade processes and bringing down barriers to trade has come into force w.e.f 22nd February, 2017. India is a signatory to this agreement. 2) India has placed a number of trade related measures negotiated under the TFA in Category A. Article 5.3.1 envisages granting an opportunity for a second test in case the first test result of a sampletaken upon arrival of goods declared for impor....
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....of the re-test without prejudice to the results of the first test. In case there is a variation in the results of the first test and the re-test,the competent authority shall take the decision relying upon either of the tests specifying the grounds in writing for the decision so taken. In case the competent authority is unable to decide whether to rely upon the first or the re-test results, then it may order a second re-test provided the consignment is still within the customs control. However, this option should not be resorted to in every case of variation between the first test and re-test results. g. The facility of re-testing, is a trade facilitation measure, which should generally not be denied in the ordinary course. However, there might arise circumstances where the customs officer is constrained to deny the re-testing facility. Board expects that such denial would be occasional and on reasonable grounds to be recorded in writing. h. Where the re-testing procedure is done at the instance of the department instead of the importer, the above procedure shall be followed mutatis mutandis.3) Difficulties, if any, in implementation of this circular, should be br....
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....the learned Writ Court took a view agreeing with the submissions of the writ petitioner and respondents that the Betel Nuts which were being sent from one place to another was not being offered for sale, at this stage, in which the samples could have been taken out and subjected to analysis under the provisions of the Food and Safety and Analysis Rules and Regulations. The learned Writ Court took a view that the Betel Nuts are raw materials which requires sufficient processing to be done and only thereafter, this would be packaged in terms of the provisions of the Food Safety and Standards (Packing and lebelling) Regulations 2011 for being put up for sale. The learned Writ Court took a view that the stage had not come into existence when the sample was sent by custom authorities to the 'CFL', Kolkata (Extension Center, Raxaul). 33. As is evident from the discussions made in the judgment dated 24.07.2013 passed in M.J.C. No. 2185 of 2013, learned Writ Court hearing the modification application was not apprised of the fact that all consignment of high risk food items are liable to be referred to authorized representative of FSSAI or PHOs as the case may be for testing and cl....
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....accepted. It is well settled law that a judgment of the Court is always rendered in the facts placed before the Court and the submissions made in the matter. Since this Court has found that the aforesaid materials were not brought before the learned Writ Court in the case of Salsar Transport Company (supra), the said decision cannot be applied on the face of the materials which have been placed before this Court in the present case. Nothing has been brought to show that the very sampling and testing of the Areca Nut was not in accordance with law. 36. The another submission of learned counsel for the petitioners that there cannot be a refusal to provisionally release the goods on the grounds stated in Annexure '4' to the writ application is also not acceptable to this Court. The Court has taken note of the detail guidelines issued by the Department of Customs to streamline the divergent procedures being followed for grant of provisional release of the goods which are seized under Section 110 of the Customs Act, 1962. The provisional release of the seized goods is to be refused when the goods do not fulfill the statutory compliance requirements of any Act, Rule, Regulation ....