TaxTMI 
TaxTMI 
2023 (8) TMI 803
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.... Peas" and "Soya bean" as imported by the petitioner. These consignments were not being cleared by the customs authorities on the ground that the goods are genetically modified and which if they exceed the permissible parameters cannot be permitted to be cleared and / or they would be required to be re-exported. It is on such premise, that the clearance of the goods being not accepted by the customs authorities, coupled with the fact that the goods were suffering demurrage / storage charges, causing a serious prejudice to the petitioner not only on the rights of the petitioner as a importer but also that on monetary losses being caused to the petitioner, the present petition came to be filed on 17 October, 2022, praying for the following reliefs:- "a) That the provisions of Environment Protection Act, 1986 and the Manufacture, Use, Import, Export and Storage of Hazardous/Micro-Organism/Genetically Engineered Organisms or Cells Rules, 1989 issued thereunder are not applicable in relation to the impugned import of Soyabean; b) That this Hon'ble Court be pleased to declare that the provisions of Food, Safety and Standard Act, 2006 and the Orders issued thereunder sha....
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....nal disposal of the Petition, to issue any order or direction and permit the Petitioner to provisionally release .for home consumption the Soya bean consignment weighing 17742 MT as detailed in Bill of Entry Nos. 2295860 dt. 03.09.2022; 2296035 dt. 04.09.2022, 2296076 dt. 04.09.2022, 2295993 dt. 04.09.2022, 2296070 dt. 04.09.2022 and subject to such terms and conditions as required in law and as the Hon'ble Court deems fit and proper; i) that this Hon'ble Court be pleased, to issue any order or direction to the Respondents and its officers to refrain from taking any coercive actions against the Petitioners; j) that this Hon'ble Court be pleased, pending the hearing and final disposal of the Petition, issue any order or direction, restraining the Respondents' by themselves, their officers, subordinates, servants and agents from taking any steps or proceedings in pursuance of or in furtherance of the Seizure Memo dated 4" October 2022 and investigation initiated issued by Respondent No. 2 such as but not limited to destruction, sale or auction of the impugned goods; k) for ad-interim reliefs in terms of the prayers (g) - (j) above; l) for costs of ....
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....e, we extract the order hereinbelow:- "1. Heard the learned Counsel for the parties. 2. The Petitioner is aggrieved by the stand taken by the Respondent Customs Department of not clearing the consignment of soyabeans imported by the Petitioner from Mozambique. 3. According to the Customs Department as per the Import policy, all imported goods are subjected to domestic laws, acts, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods. 4. The Respondent Customs Department states that the imported soyabeans are genetically modified. According to the Petitioner, though the goods are genetically modified, they are within the permissible limits set out by the Food Safety and Standards Authority of India. The Customs Department contends that the goods have not been cleared by the Genetic Engineering Approval Committee under the Environment Protection Act, 1986 which deals with genetically modified food and genetically modified organism. The clause in the Import policy relied upon by the Customs Department read thus : "6. Genetically Modified Food, Feed, Genetically Modi....
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....9 (RE-2007) / 2004-2009 dated 27.12.2007] 5. The Petitioner contends that the Petitioner has the necessary certification under the Plant Quarantine (Regulation of Imports into India) Order 2003. The Petitioner also relies upon the order issued by the Food Safety and Standards Authority of India dated 21 August 2020 and the Annexure 1 thereto which refers to soyabean as a permissible import. 6. According to the Petitioner, as per the norms specified by the Food Safety and Standards Authority of India the Petitioner has also obtained the necessary certification from the exporting country, Mozambique, that the consignment is not genetically modified. The Petitioner also contends that the Petitioner cannot be driven to take necessary No Objection from the authority under the Environment Protection Act and it is the Customs Department who should abide by the clearances given under the Food Safety and Standards Authority of India and the Plant Quarantine (Regulation of Imports into India) Order 2003. 7. The Petitioner has sought to contend that the Food Standards Act, 2006 being a later legislation would prevail over the Environment Protection Act, 1986. ....
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....al Committee. In this affidavit, in paragraph 13, the Deponent has stated that the Ministry of Environment has no role in regulating the import of genetically modified food, including food crops for direct use of food for consumption. The issue at hand is regarding the import of soyabean. This affidavit though stated to be filed on behalf of Respondent No. 8 - the Committee does not refer to the role of the Genetic Engineering Appraisal Committee, which, according to the Department of Customs, is more relevant; instead, a sweeping generalized stand is taken. Therefore, when the Petition came up on board yesterday, the Deponent of the affidavit was directed to remain present to explain. 4. The Deponent is present. The learned Counsel for Respondent Nos. 1, 8 and 10 submits that this specific paragraph is incorrect and states an additional affidavit would be filed. To a query to the Deponent as to whether he has filed this affidavit on instructions of Respondent No. 8 - the Committee, he has answered in negative. The learned Counsel for Respondent Nos. 1,8 to 10 sought to contend that since the Committee is under the Ministry of Environment, an affidavit and appearance are f....
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....s the "method and food matrix wise testing" of genetically modified soyabeans under National Accreditation Board for Testing and Calibration Laboratory ("NABL"). The learned ASG also referred to the report received from the accredited laboratory - Geo Chem Laboratory which recorded the extent of Genetic Modification ("GM") in the sample was below 1% and that such laboratory does not have a facility of food matrix wise testing. The statement of the learned ASG that it would be appropriate that sample of the consignment is tested from a different Laboratory and on receipt of a report from such laboratory, if it is found that the item as tested is below 1%, then the option of provisional release can be considered also came to be recorded. The contention on behalf of the petitioner that Geo Chem Laboratory is an accredited laboratory, hence there was no reason why the report on record needs to be discarded was also noted by the Court. The Court, accepted the suggestion made by the learned ASG, that the sample which is already drawn pursuant to panchanama dated 17 September, 2022 would be sent to another Laboratory. Thus awaiting the second laboratory's report, the petition was adjourne....
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....epartment as early as possible. 7. Hearing of this petition is deferred to 7 June 2023. To be listed under the caption "For Directions". 8. The Central Government will also consider coming up with a co-ordinating mechanism so that conflicts, such as the one which have arisen before us can be avoided. 9. The learned counsel for the Petitioner states that the Port Trust is not releasing the consignment of Pigeon Peas and representations have been made in that regard. The Port Trust Authority shall respond to this communication within period of one week by way of written order and after the order is received, we permit the Petitioner to amend the petition to incorporate, challenge the same, if the Petitioner is so indulged. 10. The learned Senior Advocate for the Petitioner states that if the order passed by the Port Trust is adverse, liberty may be granted to move to the vacation court. It is for the Petitioner to take the steps and it is for the vacation court to consider the same if it is satisfied of the urgency." 6. Thereafter the proceedings had remained pending for report of such laboratory to be placed on record. When the proceedings were....
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....ni states is correct, this is a sorry state of affairs and certainly not conducive to an effective trade. In such circumstances, in the present case the anxiety of the Court as seen from the earlier orders, was to the effect that the laboratory reports be made available expeditiously. 3. We may also observe that similar issues have repeatedly reached the Courts. In these circumstances, we are of the opinion that there ought not to be any uncertainty on such issues, which would adversely affect the trade and the business interest of the importers, whichever may be the category of goods, requiring a laboratory clearance. Also the policy of the Government is to have effective trade practices. We would, therefore, intend that the Government of India considers forming a centralized agency/laboratory by appointing appropriate research persons in different scientific fields or designate specific laboratories for the different items reaching the ports requiring such tests. Such provision / facility would assist the trade, whereby expeditious laboratory reports can be facilitated, enabling clearance of the goods being imported into the country. Any uncertainty of business on such i....
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.... the earlier orders and on the Laboratory reports of Geo Chem Laboratories Pvt. Ltd. as also the reply affidavit filed on behalf of respondent No. 7-the Food Safety and Standards Authority of India, as also the report of second laboratory namely Kochi Laboratory, as relied upon by the Customs. The Court noted the stand taken by the Genetic Engineer Appraisal Committee (GEAC) as stated on affidavit, that the GEAC was dependent on the test which would be undertaken by respondent Nos. 7 and 9 (FSSAI). The Court also recorded a statement as made in the affidavit of Dr. Krishna Methekar filed on behalf of the FSSAI dated 17 March, 2023 in which the FSSAI stated that the sample was found to be complaint by FSSAI's accredited Laboratory being the subject matter of relevant bills of entry. The Court also recorded the contention as urged on behalf of the FSSAI that there ought not to be an objection for clearance of the said goods from the point of view of FSSAI Standards. The contention as urged on behalf of the petitioner that the FSSAI had granted a certificate to that effect, and therefore, clearance of the said goods ought to be granted, was also recorded by the Court. However, the Cou....
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....f respondent nos. 1, 8 and 10. It would be imperative to note such order passed by this Court, which recorded the said developments. The order dated 18 July, 2023 reads thus:- "1. On the backdrop of the earlier orders, we have heard learned counsel for the parties. We have also perused the laboratory reports of Geo Chem Laboratories Pvt. Ltd. as annexed to the reply Affidavit filed on behalf of Respondent No. 7 the Food Safety and Standards Authority of India (for short "the FSSAI"). We have also perused the laboratory report of the Kochi Laboratory relied on behalf of the Customs. 2. Insofar as the stand taken by the Genetic Engineer Appraisal Committee (GEAC) is concerned, it clearly appears from its Affidavit that such a committee has nowhere come to any final conclusion in regard to the clearance of these goods on the parameters being followed by it under para 6 of ITC (HS), 2017, Schedule 1 - Import Policy, (General Notes regarding Import Policy), as set out in para 5 of its Affidavit. The GEAC is dependent on the test which would be undertaken by the FSSAI. 3. We have perused the Affidavit of Dr. Krishna Methekar filed on behalf of the FSSAI dated 1....
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....itial stand of the GEAC itself is clear i.e. to call for the test report from the FSSAI then certainly the note of the FSSAI becomes crucial in such matters. 7. Accordingly, we expect such an Affidavit to be filed on behalf of FSSAI on or before the adjourned date of hearing. Copy of the Affidavit be served upon the parties. 8. We also record Mr. Mishra's objection on the report of the FSSAI and his contention that some more test would require to be undertaken on the basis of some questionnaire which he has received from the department, whereby the department has asked certain questions to the Kochi Laboratory. We may however observe that as submitted by Mr. Nankani, that the clearance of the Soybean is intended for extraction of oil and that if at all as per the certification of the FSSAI, the goods are permitted to be cleared, they would not be released for any agriculture purpose on any other purpose and the same would be used only for extraction of oil. Accepting such statement of Mr. Nankani, we shall hear the parties on the adjourned date of hearing, considering the Affidavit to be filed on behalf of Respondent No. 7-FSSAI. 9. Ms. Shehnaz Bharucha, ....
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....avit as filed on behalf of FSSAI - respondent Nos. 7 and 9. 3. In such context, apart from material on record, Mr. Nankani has brought to our notice a Tabulation of Imports, which is sought to be obtained from the Ministry of Commerce & Industry that soyabean (HS Code 12019000) was imported in the quantity of 6,55,895.50 MT in the year 2021-2022 and in the quantity of 5,22,553.22MT in the year 2022- 23. We have requested the learned ASG and Mr.Mishra, to keep ready whatever material in this regard before the Court and, more particularly, the details of the laboratory certificates on the basis of which clearance was granted to the imports of the year 202122 and 2022-23. 4. Mr. Vyas, learned ASG for Respondent Nos. 1, 8 and 10, has also stated that, on the backdrop of today's discussion, he would take appropriate instructions, so that further orders can be passed after hearing the parties. 5. Mr. Bhalwal, learned Counsel for Respondent No. 4, intends to file rejoinder affidavit. The same be filed in the office with proper pagination and served on all the parties. 6. We are also of the opinion that the affidavit dated 24th July 2023, filed on behalf....
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....eing imported were safe for human consumption. It is in such context, the Court noted that the affidavit filed on behalf of the FSSAI was not in compliance on what was observed by the Court in paragraph 4 of the order dated 18 July, 2023, and in such context, as a clear affidavit to that effect was not placed by the FSSAI, the Court expressing its dissatisfaction, had adjourned the proceedings for today, to enable FSSAI to place on record clear affidavit in terms of what the Court expected in paragraph 4 of its order dated 18 July, 2023. The Court accordingly passed the following order on 09 August, 2023 adjourning the proceedings today:- ". On the earlier occasion, we had adjourned the present proceedings for today to enable the FSSAI to place on record a short clarificatory affidavit for the reason that although our order dated 18 July 2023 was crystal clear, an affidavit in terms of our observations in paragraph (4) of the said order, was not placed on record. Thus, in our opinion, though it was to be only one paragraph affidavit, however, even to place on record such an affidavit, such a long time has been taken and that too on the backdrop of series of earlier orders ....
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....nk guarantee for the differential duty; ii. The petitioner shall also furnish a bond with appropriate undertakings in regard to the payment of duty and other necessary statements so as to co-operate in the investigation which is being undertaken by the Customs authorities in regard to the exact country of origin of imports, which would have a material bearing in regard to the clearance of the goods from the duty perspective as also on the nature of imports; iii. That the petitioner shall also strictly adhere to the use and consumption of the goods for the purpose of extraction of oil and that the product as manufactured shall also be subjected to further FSSAI clearance. iv. Needless to observe that the bank guarantee shall be furnished before clearance and it shall be subject to the further actions, if any, which shall be taken by the Customs Department. Mr. Mishra, learned counsel for the Customs Department, would submit that an endeavour shall be made to complete the investigation as expeditiously as possible and within a period of one month from today. v. We keep open all contentions of the parties on any further proceedings including on issues of investigation, and....