AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2022 (9) TMI 1354
X X X X Extracts X X X X
X X X X Extracts X X X X
....mples and issue the test reports, within the free period provided by the Ministry of Civil Aviation, Union of India i.e. 48 hours of goods being stored at the Custodian warehouse; OR Direct, the Respondent No. 3, to take a sample for the purpose of grant of NOC from a Public warehouse as contemplated under Section 49 of the Customs Act, pending clearance of the goods; OR Direct, the Airport Economic Regulatory Authority of India to levy Demurrage Charges on importer of Consumable goods after grant of NOC from FSSAI; c. Direct Respondent No. 5 to expeditiously decide the application of the Petitioner for storing its goods u/s 49 Customs Act, and in any case within 48 hours of receiving such application;" 2. The petitioner had approached this Court essentially aggrieved by the alleged delay caused by the Food Safety and Standards Authority of India (FSSAI) in the grant of a No Objection Certificate (NOC) for clearance of imported goods resulting in prohibitive demurrage charges coming to be levied. The petitioner had contended that in terms of the provisions made in Section 47(5) of the Food Safety and Standards Act, 2006 (the Act), FSSAI was oblig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he importer is granted the right to move imported goods meant for home consumption to a "public warehouse" subject to requisite permissions being obtained from the Customs authorities. 2. In view of the aforesaid contentions as addressed, let learned counsel appearing for FSSAI address submission on the next occasion. 3. List again on 27.09.2022." 5. Learned counsel for the petitioner has essentially argued that in terms of the provisions made in the Customs Act, 1962 the procedure for clearance of imported goods which stand enshrined in Chapter VII of the 1962 Act place an embargo on all imported goods unloaded in a customs area from being released for home consumption. The aforesaid restrictions stand placed in Section 45 which mandates that they would remain in the custody of such persons as may be approved by the Principal Commissioner or Commissioner of Customs. The clearance of goods for home consumption is thereafter dealt with in Section 47 of the Act. 6. Section 48 of the 1962 Act then deals with contingencies where goods are not cleared for home consumption within 30 days from the date of unloading. That provision reads as follows: - "48. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the imported articles, importers are forced to store the same in the custodian warehouse at the airport which results in huge liabilities towards demurrage being levied. It was in the aforesaid light that learned counsel for the petitioner submitted that importers must be recognized to have the right as well as the choice to move the goods to a public warehouse pending clearance by FSSAI. 9. It becomes relevant to note that the articles which were imported in the present case were hops, an ingredient which is used for providing a bitter flavor to beer. The article was thus liable to be duly inspected and cleared by FSSAI before it could be released for home consumption. As was already noticed by the Court the inspection and analysis of imported articles of food is governed by Section 47(5) of the Act which reads as under: - "47. (5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer." 10. The manner in which imported food articles are to be inspected and NOC's granted is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (5) The report of the visual inspection shall be submitted in FORM - 1. (6) The custom shall not clear any article of food unless it has a valid shelf life of not less than sixty per cent or three months before expiry whichever is less at the time of import" 11. Regulation 8 then makes detailed provisions with respect to the storage of imported goods. That provision reads thus: - "8. Storage facilities for Imported Foods - (1) No consignment of food articles shall be stored in a manner that one type of articles of food come in contact with other type of articles of food. (2) The imported articles of food shall be stored in accordance with the specified storage conditions in the custom warehouse before clearance, failing which, the concerned Authorised Officer may refuse to grant no objection certificate for import clearance of the food consignment. (3) The port authorities and custodian of freight stations shall ensure adequate and conducive storage infrastructure; meeting the safe storage of various types of imported food consignments in the customs area till the imported articles of food is cleared by the custom authority. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o representative sealed samples from the same batch along with a declaration by the manufacturer stating that the articles of food in the sealed container match with the representative samples placed in the sample containers. (b) Where the representative sealed sample referred to in clause (a) with a manufacturer undertaking is not provided by the Food Importer, the Authorised Officer is empowered to break open the seal and collect a sample for lab analysis. (c) The Authorised Officer may collect a representative sample from the sealed container, for lab analysis, wherever the provided sealed representative samples appear to be doubtful. (3) In respect of imported articles of food having shelf-life less than seven days, the applicant shall declare the same in FORM - 13 allowing the Authorised Officer to draw sample and issue provisional no objection certificate to the customs, without waiting for the analysis report from laboratory and on receipt of the report analysis from the laboratory, the Authorised Officer shall communicate to the customs along with no objection certificate if products conform to the standard. (3a) In case of imported pre-p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the Referral Laboratory for analysis. (11) The rejected export consignments by foreign countries that have been returned to India as the country of origin shall be subject to these regulations except that the packaging and labelling requirements shall be in accordance with the country of export and the importer shall submit rejection documents of the country of export. (12) The Food Analyst shall analyse or cause to be analysed by a notified laboratory an article of food forwarded by the Authorised Officer as per the parameters specified in the Act and the regulations made thereunder and shall forward his report within five days to the Authorised Officer whether the product is conforming or non-conforming. Provided that proprietary foods, shall be tested for as per general safety requirements for contaminants, toxins, residues and microorganism, laid down by the Food Safety and Standards Regulation, 2011, wherever applicable, depending on the nature of product. The Certificate of analysis, submitted by the importer, shall be sent with the sample. The COA should be referred while undertaking the requisite tests for quality parameters. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....storage of the imported articles in a public warehouse pending clearance for home consumption. 15. The aforesaid stand which has been taken on behalf of the Ministry of Civil Aviation is also reiterated by the Airports Authority of India, Cargo Logistics and Allied Services (AAICLAS). AAICLAS has also referred to the provisions made in the Airports Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 in terms of which fixed charges are leviable for processing and storage of cargo in warehouses established by it. 16. Appearing for the Customs authorities, learned counsel for the said respondent has submitted that the grievance which is raised by the petitioner is clearly misplaced since in the present case no permission as such was sought by the petitioner for moving the articles from the custodian warehouse to a public warehouse. However, and it was so clarified by the said respondent that in case an importer were to make an application seeking permissions as contemplated under Section 49 of the 1962 Act, the same would be considered in accordance with law. In any case, the said respondent would contend that movemen....