TaxTMI 
TaxTMI 
2026 (7) TMI 1137
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....ded is whether the sampling of the imported consignment of "roasted areca nuts" at Kolkata Port by any Officer other than Food Safety and Standards Authority of India (FSSAI) Authorized Officer is illegal and without jurisdiction. 3. Apropos the facts of the case, the petitioners imported roasted Areca nuts from Belawan, Indonesia under Bills of Entry Nos. 6198642 dated December 10, 2025, 6198646 dated December 10, 2025, 6197042 dated December 9, 2025 and 6197036 dated December 9, 2025. The consignment comprised of eight containers which arrived at ICD Durgapur on December 14, 2025. Respondent No. 2 drew samples on December 26, 2025 and December 29, 2025 and forwarded the same for testing to National Food Laboratory, Kolkata. Contention of the petitioner- 4. The Learned Counsel for the petitioner submits that, in terms of the statutory scheme and the official notification, the FSSAI is the competent authorised officer for Kolkata Port to draw samples of imported foods. 5. The petitioner places reliance upon the following admitted documents, i) Letter dated April 20, 2026 being Annexure C2 at page 18 of the Writ Petition, issued by the office of the authorized o....
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.... of the authorised officer of FSSAI and forwarded them to National Food Laboratory (NFL), Kolkata for testing without any authority of law and jurisdiction. 11. This action has been in contravention to Section 25 and 47(5) of the Food Safety and Standard Act, 2006 (hereinafter referred to as the FSSAI for the sake of brevity and convenience). As per Regulation 13(1) of the FSSAI (Imports) Regulations, 2017 the sample can be drawn only by the authorised officer of FSSAI. 12. The petitioners contend that the National Food Laboratory (NFL), Kolkata, issued the test reports without following the procedure contemplated under the FSS Act and Regulations. The said report of NFL has never been shared with the petitioners. 13. Consequently, the petitioners requested the authorities to furnish copies of the test report. However, such requests have been turned down by the respondent No. 2 who inter alia, directed the petitioners to appear for an enquiry. During the enquiry the respondent No. 2 showed copies of such test reports to the petitioners. 14. On the basis of such test report, the respondent No. 2 detained the consignment in question on February 3, 2026 under Section 110(1....
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....o be done in a particular manner, it must be done in that manner, and if not done in that manner it has no existence in eye of law at all-Customs Authorities are not absolved from following law depending upon acts of a particular assessee-Something that is illegal cannot convert itself into something legal by act of a third person. 23. Learned counsel further relies upon a judgment of Babu Verghese and Others vs Bar Council of Kerala and others reported in AIR 1999 Supreme Court 1281 held that- "31. It is the basic principle of law long settled that if the manner of going a particular act if prescribed under any statue, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs Taylor, (1875)1 Ch D 426 which was followed by Lord Roche in nazir Ahmad V, King Emperor 63 Ind Ap 372: AIR 1936 Pc 253 who stated as under: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." Contention of the Respondent No 2- 24. At the outset respondent no 2 submits that the instant writ petition is not maintainable since there is an efficacious alternative sta....
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....ds under the CTH 20081991 (roasted Areca Nuts) instead of CTH 08028010 (whole Areca Nuts dried). 32. It has been further submitted that, since all the imported goods are found to be 'unsafe' and unfit for human consumption, and goods in five containers are found to be mis-declared and mis-classified, they have been seized under section 110(1) of the Customs Act,1962 on February 3,2026 with corrigendum issued on February 6,2026. 33. It has been contended that Entry number 6 of Notification No. 26/2022-Customs (N.T) dated March 31, 2022 indicates that Intelligence Officer (IO) in the Directorate Central of Revenue Intelligence is the proper officer under section 144 of the Customs Act, 1962. 34. FSSAI relies on Instruction No. 04/2026 dated April 20,2026 modifying Instruction No. 31/2025-Customs dated November 3,2025 read along with the previous relevant instructions on the same subject, mentions the list of 'Authorised officers' under section 25 read with section 47(5) of FSS Act and does not talk about proper officer under Customs Act which shows that in those ports where FSSAI officers are not available, 'Superintendent/Appraiser/Inspector/examiner' of customs have ....
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....sed restraint and not an absolute bar to the exercise of jurisdiction under Article 226 of the Constitution. In Whirlpool Corporation vs. Registrar of Trade Marks, reported at 1998 (8) SCC 1, the Supreme Court held that an alternative remedy is not a bar to the exercise of the writ jurisdiction of the High Court if the writ petition is filed for enforcement of fundamental rights; where there has been a violation of the principles of natural justice; where the order or the proceedings are wholly without jurisdiction; or when the vires of an Act is challenged. The present case falls within the first exception since the petitioner questions the statutory competence of the authority for initiating the sampling process. 40. Following the dictum of this Court in Whirlpool (supra), in Harbanslal Sahnia vs Indian Oil Corporation Ltd. reported at AIR 2003 SC 2120, observed that- "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by....
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....ified authorized officer. For Kolkata Port FSSAI is the authorized officer which excludes the Customs Officer. As demonstrated by the letter dated April 20, 2026 and August 6, 2025 issued by the Ministry of Finance notified the list of Authorized Officer of every port under section 25 read with section 47(5) of the Food Safety Standards (FSS) Act and regulation 13(1) of FSS (Import) Regulation, 2017. 45. In the conspectus of the above as adumbrated herein, that FSSAI is an authorized officer for Kolkata Port under Section 25 read with Section 45(5) of the Food Safety and Standards Act, 2006, regulation 13(1) of the FSSAI (Import) Regulations, 2017, DGFT Notification No. 57/2015-20 dated February 10, 2021 and officially notified list of ports, thereby entitling the petitioner to fresh drawal of sample by FSSAI Authorized Officer. 46. Section 89 of the FSS Act, 2006 overrides other laws. Judicial interpretation clarifies that the overriding effect applies strictly to Food Safety, Standard and adulteration. It does not however disturb the distinct statutory machinery under the Customs Act, 1962 designed to protect revenue and enforce import restrictions. Any proper officer under....
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....td.(Supra) that customs authority cannot arbitrarily utilise its powers to override or sideline, FSSAI certification. Once the FSSAI clears an imported food item as edible the Custom Department cannot question the wisdom of the FSSAI or perform secondary retesting on food parameters to stall the imports without extraordinary, substantiated proof of fraud. 52. It is therefore, well settled proposition that Section 89 of FSSAI completely overrides the Customs Act. If the samples tested by the National Food Laboratory of FSSAI confirm that the product complies with the prescribed food safety standards, the Customs authorities cannot declare the food article unfit on the basis of separate sampling. The proper officer power under Section 144 of the Customs Act remains alive only for revenue purposes but it cannot defeat a positive FSSAI safety report for clearing food into the domestic market as held by the Hon'ble Apex Court. 53. Thus, it is explicit that the custom authority has the power to seize the goods, documents and things and is also equally empowered to take samples for testing under Section 144 of the Customs Act, 1962. By virtue of Section 25 read with Section 47 the F....
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....venue Intelligent is the proper officer to initiate proceedings under Section 144. Thus, drawing samples for testing by the Customs authorities is not in excess of jurisdiction and the same is sustainable in the eye of law. In this context, the Learned Counsel appearing for the petitioner draws the attention of this Court to a circular dated April 20, 2026 and August 6, 2025 to demonstrate that FSSAI has been notified to be the competent officer to draw samples for testing in respect of the goods confiscated. Only FSSAI can certify imported food for human consumption. Custom cannot detain on separate sampling once FSSAI posses. 56. The laboratory report is only as reliable as the sampling process itself. If the sampling is shown to have been undertaken by an authority lacking statutory competence or in violation of the prescribed procedure, the report based on such samples cannot legally sustain adverse civil consequences against the importer. 57. In concise, the FSSAI Authorised Officer is the sole competent authority to draw samples and issue No Objection certificate for human consumption. Section 144 of the Customs Act operates independently for revenue protection and clas....