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2016 (5) TMI 1107 - HC - CustomsImport of energy gel and energy chews - There are two broad issues that arise in this petition. The first concerns the question whether proprietary foods are outside the purview of the FSS Act, the FSS Regulations 2011 and the FSS Packaging Regulations 2011. The second issue is whether on the facts of the present case, the Petitioner can be said to have complied with the FSS Packaging Regulations 2011. - Held that - The main object of the FSS Act is to lay down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption. The word food has been defined under Section 2 (1) (j) of the FSS Act to include any substance, whether processed, partially processed or unprocessed intended for human consumption. It includes a variety of substances. The expression food additive has been separately defined under Section 2 (1) (k) of the FSS Act. Importer is required to mandatorily comply with the labelling requirements in terms of the FSS Regulations and FSS Packaging Regulations. Although the Petitioner admitted to having affixed labels on the master boxes after they arrived in India, it is evident from the affidavit of the Customs authorities and the letter of the CWC that neither of them gave any permission to the Petitioner to do so. Further, it is evident that the FSSAI also permitted the affixation of the labels on imported food articles only to a limited extent. Commissioner of Customs will initiate an inquiry into the affixation of labels in the present case by the Petitioner on the master boxes after they arrived in India, and while they were at the CWC warehouse, without the permission of either the Customs or the CWC. The purpose of the enquiry would be ascertain where and how the lapses occurred, and what action requires to be taken against those involved including the importer and his CHA and other employees as well as officers/employees of the Customs and/or CWC. The enquiry will be completed within a period of three months from today. Appropriate action in terms thereof will be taken against all those found responsible for the lapse. - Decided against the petitioners.
Issues Involved:
1. Whether proprietary foods are outside the purview of the FSS Act, FSS Regulations 2011, and FSS Packaging Regulations 2011. 2. Whether the Petitioner complied with the FSS Packaging Regulations 2011. Issue-wise Detailed Analysis: 1. Proprietary Foods and the FSS Act: The first issue concerns whether proprietary foods fall outside the ambit of the FSS Act, FSS Regulations 2011, and FSS Packaging Regulations 2011. The Court had previously addressed this on 18th January 2016, concluding that proprietary foods are not entirely outside the scope of the FSS Act. Specifically, Section 22 of the FSS Act, which deals with proprietary foods, does not exclude them from the Act's purview unless they are unsafe or contain prohibited ingredients. The Court emphasized that the opening words of Section 22, "save as otherwise provided under this Act," are meant to narrowly tailor the prohibited categories, not exclude all proprietary foods. The Court found that the FSSAI's stance that proprietary foods are entirely outside the FSS Act was not justified. 2. Compliance with Labelling Requirements: The second issue pertains to whether the Petitioner complied with the labelling requirements under the FSS Packaging Regulations 2011. The Court examined this issue in detail, noting that the Petitioner had imported energy gels and chews, which were tested by OPL and found to contain necessary labelling details like manufacturing date, best before date, and country of origin. However, FSSAI did not accept these findings, citing that the products did not meet the labelling requirements as per their standards. Background and Proceedings: The Petitioner, engaged in importing food items, faced issues with the clearance of their consignment due to labelling non-compliance. The Customs Department and FSSAI were involved in the process, and the Court had to intervene multiple times to address the procedural glitches and compliance issues. Court Orders and Observations: - 20th November 2015: The Court noted a software glitch preventing the Customs Department from transmitting the 'BE message' to FSSAI, delaying the clearance process. - 26th November 2015: The Court directed manual transmission of the 'BE' by Customs to FSSAI and immediate sample testing. - 18th January 2016: The Court highlighted that the FSSAI's refusal to draw samples due to proprietary food classification was unjustified. The Court also addressed the labelling non-compliance, directing FSSAI to inspect the packages and draw samples from those meeting the labelling requirements. - 15th February 2016: The Court directed photographing the packages to verify labelling compliance. - 1st March 2016: The Court required the Petitioner to clarify details about the label preparation and affixation process. - 25th April 2016: The Court directed an inquiry into the affixation of labels without permission and allowed the Petitioner to apply for re-export of the consignment. Labelling Compliance Findings: The FSSAI found that the packages did not meet the labelling requirements, lacking details like the manufacturer's complete address and batch number. The Court noted that while some information was provided, the Petitioner did not follow the proper procedure for label affixation, as no permission was granted by Customs or CWC. Directions and Conclusion: The Court directed the FSSAI and Customs to coordinate and ensure compliance with the FSS Act and Regulations for imported food articles. An inquiry was ordered to investigate the unauthorized label affixation, and the Petitioner was allowed to apply for re-export of the consignment. The writ petition was disposed of with no orders as to costs.
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