TaxTMI 
TaxTMI 
2023 (8) TMI 1057
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...., Customs, Nagpur drawing four samples from each container. In all forty samples were accordingly collected. On 14-11-2022, the Superintendent of Customs forwarded the samples to the Central Revenue Control Laboratory (CRCL), Mumbai and sought opinion of results on testing as under : "...whether a) food starch is added, if yes, to what extent, and the nature of it. b) impurities are removed. c) any additives have been introduced, if yes, please share the details. d) boiled, if yes, to what extent. e) process of drying has happened, if yes, to what extent." 3. On the same day, the Superintendent of Customs forwarded similar samples to Anacon Laboratory Private Limited, Nagpur, a FASSAI accredited Laboratory for seeking information of results on testing as under : "...whether a) sample is fit for Human Consumption. b) food starch is added, if yes, to what extent, and the nature of it. c) impurities are removed. d) any additives have been introduced, if yes, please share the details. e) boiled, if yes, to what extent." On 16-11-02022, CRCL, Mumbai submitted its report to the Superintendent of Customs. As per that report, there was presence of some....
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....etition was treated as an application made under Section 110A of the Act of 1962 and that application was directed to be decided by the Commissioner of Customs. Accordingly, on 11-1-2023, the Commissioner of Customs decided the said application and declined to release the said goods under Section 110A of the Act of 1962 on the ground that the said goods did not contain starch or other additives and did not fall under CTH2106. Shortly thereafter, the Superintendent (SIIB), Customs effected a seizure and issued a seizure memorandum on 18-1-2023. The respondent being aggrieved by the order passed by the Commissioner of Customs preferred an appeal under Section 129A of the Act of 1962. By its order dated 10-5-2023, the CESTAT proceeded to allow the said appeal and directed provisional release of the said goods under Section 110A of the Act of 1962. Being aggrieved, the appellant has challenged the said order. 5. Shri S.N. Bhattad, learned counsel for the appellant, referred to the test reports received from CRCL, Mumbai and Anacon Laboratory, to submit that since the same were contradictory in nature, the samples were sent to a Referral Laboratory at New Delhi. The report of the Refe....
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....quest letter dated 14-11-2022. Hence no opinion in that regard was given by it. Referring to the communication dated 5-12-2022 issued by the Superintendent to the respondent, it was submitted that since the test report submitted by Anacon Laboratory was in favour of the respondent, there was no reason for seeking a re-test in that regard. Reference was further made to the communication dated 12-12-2022 issued by the respondent to the Assistant Commissioner of Customs to point out that the Customs Laboratories were not competent nor capable of testing food items. Such tests were required to be carried out by the FSSAI accredited Laboratory. It was only in the subsequent communication dated 14-12-2022 that was issued by the Superintendent to CRCL, New Delhi that its opinion with regard to fitness for human consumption was sought. No consent of the respondent as importer was sought before seeking such reference. Despite a clear report submitted by CRCL, Mumbai, further communication dated 30-11- 2022 was issued to the Chemical Examiner and on that basis, reference was sought to be made in view of the reply filed by the Chemical Examiner on 2-12-2022. Inviting attention to the observat....
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....food starch is added, if yes, to what extent, and the nature of it. b) impurities are removed. c) any additives have been introduced, if yes, please share the details. d) boiled, if yes, to what extent. e) process of drying has happened, if yes, to what extent. Whether - a) sample is fit for Human Consumption. b) food starch is added, if yes, to what extent, and the nature of it. c) impurities are removed. d) any additives have been introduced, if yes, please share the details. e) boiled, if yes, to what extent. From the aforesaid, it is clear that the tests sought to be undertaken by CRCL, Mumbai was as to whether food starch was added to the samples, whether impurities were removed and any additives had been introduced. These queries have relevance with the aspect of classification of the goods in question. The tests sought from Anacon Laboratory were with regard to fitness of the samples for human consumption coupled with addition of food starch and removal of impurities. These tests being sought from a Laboratory that was approved by the FSSAI to gather as to whether the samples were fit for human consumption. This had relevance under the Act of 2006. The....
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....article to the Food Analyst at a notified Laboratory under the Regulation of 2011. If the sample is found to be safe, the remaining sample is required to be returned to the importer. If the sample is found to be unsafe, on the request received from the food importer, the second sample can be forwarded to the Referral Laboratory for analysis. It thus indicates that only if the sample sent to the Food Analyst is found to be unsafe that such second sample be referred to the Referral Laboratory. The communication dated 30-11-2022 issued by the Superintendent therefore does not appear to be in consonance with Regulation 9 of the Regulation of 2017. Though the learned counsel for the appellant sought to rely upon Regulation 10(9) of the Regulation of 2017 to urge that the Authorised Officer was empowered to seek re-testing by sending the second sample to the Referral Laboratory for re-testing, it is seen that this course is open only after satisfaction of the Authorised Officer that the imported articles of food consignment pose a serious hazard to the safety and health of the consumers. It is clear that Regulation 10(9) of the Regulation of 2017 can be invoked if the Authorised Officer....