TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 773
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....arned counsel for the parties. 3. The main grievance of the Petitioner concerns the refusal by the Respondents to re-test the seized goods. This relief is formulated in prayer clause (c) of the Petition and the same reads as follows:- "c) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction ordering and directing the Respondents, their servants, sub-ordinates and agents to forthwith draw fresh samples from the Seized Goods covered under Seizure Memos dated 07.03.2025 and 03.04.2025 (Exhibit K and L) which are presently under control of the Respondents at the cost and expenses to be borne by the Petitioner and further Order and Direct that the fresh samples sent for Re-test at any of the Accredicted Laboratories in the state of Maharashtra as described in Exhibit J above." 4. The record shows that even earlier, the Petitioner's goods had been seized, and the matter was referred to the FSSAI Laboratory in the State of Maharashtra. On that occasion, a report favouring the contentions of the Petitioner was received from the said laboratory. 5. On this occasion, the ....
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....oratory in Kerala was specialised for testing cashew-nuts. 9. Mr. Akash Vijay has appeared on behalf of FSSAI. On instructions, he submitted that there are 39 laboratories all over the country for testing cashew-nuts. He submitted that out of these, almost 7 are in the State of Maharashtra, which are specialised in testing cashew-nuts for human consumption. Since in this case one of the issues was whether the samples were roasted cashew-nuts, the matter was referred to the Kerala Laboratory. 10. On further instructions, Mr. Akash Vijay submitted that most of these laboratories, though accredited by NABL, are private laboratories. He submitted that there is a Central Revenues Control Laboratory in New Delhi, operated by the Government of India, also undertakes this type of testing. 11. Mr. Mishra pointed out that the show-cause notice has already been issued to the Petitioners on 3 July 2025, and the adjudication is pending. He pointed out that the Petitioners have not yet filed their reply to the show-cause notice. 12. We think that the report from the Central Revenues Control Laboratory, New Delhi, as suggested by FSSAI would assist the Customs Authorities in disposing....
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....ce 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 will 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 will not be resorted to in every case of variation between the first test and re-test results. 2(g) The facility of re-testing, is a trade facilitation measure, which, generally, will not be denied in the ordinary course. However, there might arise circumstances where the customs officer is constrained to deny the re-testing facility. However, such denial would be occasional and on reasonable grounds to be recorded in writing." 19. Clause 2(f) refers to the cases where there is a variation in the results of the first test and the retest. Clause 2(g) clarifies that this facility of re-testing is a trade facilitation measure, which, generally, will not be denied in the ordinary course. However, ther....
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....equest was made within three days, although, as usual, the Respondents dispute this without providing any detailed explanation. Even the argument that the re-test should only be conducted on the remnants of the samples originally tested should not apply in this case, especially when no convincing reasons are provided as to why the samples, in this instance, were sent to Kerela and not to one of the several laboratories in Maharashtra. While we do not for a moment suggest that the testing cannot be done in Kerala, there must be some convincing reason why the usual procedure or the procedure followed in the earlier instance was deviated from on this occasion. In any event, if the Petitioner wishes to have a re-test carried out by collecting fresh samples that are in the custody of the Customs officials themselves, such a request cannot be refused on unreasonable grounds. 25. On behalf of the Customs Authorities, it was pointed out that there is already an order for the provisional release of these goods, and they were wondering why the Petitioner is not availing the benefit of this provisional release. Mr Mishra submitted that the Petitioner must accept the provisional release and....