2022 (11) TMI 298 - HC - Customs

Import of insecticide for non-insecticidal purpose - Requirement to obtain an import permit from respondent no.3/Central Insecticide Board and Registration Committee - applicability of provisions of Section 38 (1) (b) of the Insecticides Act, 1968. Whether, having regard to the provisions of Section 38(1)(b) of the 1968 Act (which is an exemption provision), the other provisions of the 1968 Act would be applicable, given the fact that the petitioners are seeking to use the imported product only for non-insecticidal purpose i.e., as an artificial fruit ripener? HELD THAT - Having regard to the provisions of Section 3(e)(i) of the 1968 Act, the imported product will fall within the definition of the term insecticide . It is also not in dispute that respondent no.4/Food Safety and Standards Authority of India FSSAI has taken the stand (albeit, after having the product examined by a panel of scientists), that ethephon is not carcinogenic i.e., it is fit for human use, as long as it does not come in direct contract with the food substance, which in this case is fruits - the petitioners grievance thus arose from the impediment caused to the clearance of their product for home consumption. It is averred that, even though respondent no.4/FSSAI has indicated that ethylene gas can be used to ripen fruits, the custom authorities have refused to clear the imported product/ethephon on the ground that the petitioners did not have the requisite import permit. Since the petitioners have agreed to furnish the necessary information, in this case the issue as to whether information was required to be given or not, has become academic. Once an import permit is issued by respondent no.3/CIB RC, the petitioners will be at liberty to approach the customs authorities. The custom authorities, as alluded to above, will, thereafter, act as per law - respondent no.4/FSSAI is directed to consider framing a regime whereby fruits and/or vegetables which are ripened artificially with the use of ethylene gas, which in turn is produced through use of ethephon powder, as in this case, or other artificial ripeners should have the necessary indication placed on it. List the above-captioned matters before this court on 30.11.2022 only for the purposes of ascertaining as to whether compliance has been made with the directions - petition disposed off.

Summary

Issues Involved:

1. Bringing on record the extract of the bill of entry.
2. Requirement of an import permit for non-insecticidal use under the Insecticides Act, 1968.
3. Validity of the notification issued by DGFT under the Foreign Trade (Development and Regulation) Act, 1992.
4. Examination of the product "ethephon" by FSSAI.
5. Impediments to the clearance of the imported product by customs authorities.
6. Framing guidelines for artificial ripening of fruits and vegetables by FSSAI.

Detailed Analysis:

1. Bringing on Record the Extract of the Bill of Entry:
The petitioners moved applications to bring on record the extract of the bill of entry dated 17.01.2022, obtained from the ICEGATE website. The respondents accepted the notice without prejudice to their rights and contentions. The court allowed the applications, subject to just exceptions, and disposed of them accordingly.

2. Requirement of an Import Permit for Non-Insecticidal Use:
The core issue was whether the petitioners needed an import permit from the Central Insecticide Board and Registration Committee (CIB&RC) for importing a product intended for non-insecticidal use under Section 38(1)(b) of the Insecticides Act, 1968. The petitioners contended that other provisions of the 1968 Act would not apply. However, the CIB&RC maintained that the notification dated 01.01.2015, issued under the Foreign Trade (Development and Regulation) Act, 1992, required an import permit for non-insecticidal purposes.

3. Validity of the Notification Issued by DGFT:
The petitioners argued that the DGFT could not issue a direction that conflicted with the provisions of the 1968 Act. Despite this contention, the petitioners agreed to provide the necessary information to CIB&RC to expedite the issuance of the import permit. The court noted the standard form requirements for the import permit and directed the petitioners to furnish the information within three days.

4. Examination of the Product "Ethephon" by FSSAI:
The Food Safety and Standards Authority of India (FSSAI) examined "ethephon" and determined it was not carcinogenic, provided it did not come into direct contact with food. The FSSAI's Scientific Panel on Fruits and Vegetables noted that ethephon could be used for artificial fruit ripening, generating ethylene gas up to 100 ppm, without direct contact with the fruit.

5. Impediments to the Clearance of the Imported Product by Customs Authorities:
The petitioners faced issues with the customs authorities, who refused to clear the imported product without an import permit. The court noted that once the petitioners provided the necessary information and obtained the import permit from CIB&RC, the customs authorities would act according to the law.

6. Framing Guidelines for Artificial Ripening by FSSAI:
The court suggested that FSSAI consider framing guidelines to indicate when fruits and vegetables are artificially ripened using ethylene gas produced from ethephon powder or other artificial ripeners. The court directed FSSAI to deliberate on this matter and present the guidelines.

Conclusion:
The court disposed of the writ petitions, directing the petitioners to furnish the required information for the import permit, and the customs authorities to act accordingly once the permit was issued. The court also asked FSSAI to frame guidelines for artificial ripening and listed the matter for compliance on 30.11.2022. Pending applications were closed.