2016 (1) TMI 794 - HC - Customs

Import of food items, i.e., energy gel and energy chews of different flavours - prohibited items or not - Scope of Food Safety Standard Authority of India ( FSSAI ) - Held that - The mere fact that energy gel and energy chew are not mentioned in Appendices A and B would not ipso facto mean that they are prohibited from being imported. The FSSAI will have to examine if energy gel and energy chew which are proprietary foods are unsafe or contain any ingredient which is prohibited under the FSS Act. - Consequently, the Court is of the view that the first reason given by the FSSAI in its letter dated 2nd December 2015 addressed to the Customs for not drawing samples of the consignments in question is not justified in terms of Section 22 of FSS Act. Accordingly, FSSAI directed to visit and inspect the goods - The procedure/protocol set out under Section 47 of FSS Act will be followed while taking samples.

Issues Involved:
1. Import and clearance of food items under the Food Safety Standard Act (FSS Act), 2006.
2. Role and procedure of the Food Safety Standard Authority of India (FSSAI) in issuing No Objection Certificates (NOC).
3. Implementation and functionality of the Single Window Clearance System (ICEGATE).
4. Compliance with labeling requirements under Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
5. Classification and regulation of proprietary foods under Section 22 of the FSS Act.

Detailed Analysis:

1. Import and Clearance of Food Items:
The petitioner, Unlimited Nutrition Pvt. Ltd. (UNPL), imported 'energy gel' and 'energy chews' from GU Energy Labs, USA. Upon arrival at the Inland Container Depot (ICD), Patparganj, the petitioner filed a bill of entry (BE) for clearance. The customs department required a No Objection Certificate (NOC) from the Food Safety Standard Authority of India (FSSAI) to issue an Out of Charge (OOC) order.

2. Role and Procedure of FSSAI in Issuing NOC:
Customs officers drew samples from the consignment and sent them to Ozone Pharmaceuticals Limited (OPL) for testing. OPL confirmed the samples met the requirements under the Food Safety and Standards (Food Products Standards and Food Additives) Regulation 2011. Despite this, the FSSAI did not issue the NOC, citing non-compliance with labeling regulations and the proprietary nature of the products.

3. Implementation and Functionality of Single Window Clearance System (ICEGATE):
The court noted the malfunction of the Indian Customs Single Window Project, which hindered the transmission of the BE message to FSSAI. This system, introduced to facilitate seamless online customs clearance, was not functioning properly, causing delays in obtaining the necessary NOC from FSSAI.

4. Compliance with Labeling Requirements:
FSSAI objected to the labeling of the imported products, stating that the labels did not mention the date of manufacture, manufacturer's name and address, and lot number, as required by the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. The court acknowledged that while the OPL report indicated some compliance, the customs department did not follow the proper procedure by not involving FSSAI in the sampling process.

5. Classification and Regulation of Proprietary Foods:
A significant issue was whether proprietary foods fall outside the purview of the FSS Act. The court interpreted Section 22 of the FSS Act, concluding that proprietary foods are not entirely excluded from the Act. The court emphasized that proprietary foods should not be prohibited unless they are unsafe or contain prohibited ingredients. The court found FSSAI's blanket rejection of proprietary foods unjustified.

Conclusion:
The court directed that an authorized FSSAI officer inspect the consignment and draw samples in compliance with the FSS Packaging Regulation 2011. The samples would be tested, and the results submitted to the court. The court also noted that the petitioner should not bear additional costs for retesting, as the initial testing was done per customs instructions. The case was scheduled for further hearing on 28th January 2016, with instructions for immediate compliance to avoid further delays.

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