2023 (8) TMI 1057 - HC - Customs

Provisional release of the goods under Section 110A of the Act of 1962 - goods declined to be released on the ground that the said goods did not contain starch or other additives and did not fall under CTH2106 - CESTAT allowed the provisional release - contradictory nature of test reports received from CRCL, Mumbai and Anacon Laboratory - HELD THAT - The report dated 16-11-2022 received from CRCL, Mumbai indicated presence of some insect infestation in all the samples. On this basis, the Superintendent of Customs on 30-11-2022 proceeded to observe that there was a mismatch between the test memo submitted and the test report obtained. Anacon Laboratory in its report dated 16-11-2022 found the samples fit for human consumption as per FSSAI specifications. It is clear that despite receiving the test reports for the queries that were made to CRCL, Mumbai and Anacon Laboratory, the Superintendent by his communication dated 30-11-2022 further sought a test to be undertaken by CRCL, Mumbai as to whether the sample was fit for human consumption or not. When this test was not sought at an earlier point of time vide communication dated 14-11-2022 and the report of Anacon Laboratory, a FSSAI accredited Laboratory being clear that the sample was fit for human consumption, there does not appear to be any basis for the Superintendent on 30-11-2022 to again make a request for confirming whether the sample was fit for human consumption or not. In this regard, if Regulation 9 of the Regulation of 2017 is perused, it becomes clear that two parts of the food sample are required to be first taken. The Authorised Officer is required to forward one part of the sealed and labelled article to the Food Analyst at a notified Laboratory under the Regulation of 2011. If the sample is found to be safe, the remaining sample is required to be returned to the importer. If the sample is found to be unsafe, on the request received from the food importer, the second sample can be forwarded to the Referral Laboratory for analysis. It thus indicates that only if the sample sent to the Food Analyst is found to be unsafe that such second sample be referred to the Referral Laboratory. The communication dated 30-11-2022 issued by the Superintendent therefore does not appear to be in consonance with Regulation 9 of the Regulation of 2017. The appellant has relied upon Notification dated 9-10-2019 issued by FSSAI which refers to notifying various Customs officials as Authorised Officers under Section 25 read with Section 47(5) of the Act of 2006 for food import clearance. In accordance therewith, Instruction No. 1 of 2020 issued by the dated 12-2-2020 require the Custom Official notified as Authorised Officer to ensure that the FSSAI accredited Laboratories are being utilized for analysis of samples of imported food items. The communication dated 14-12-2020 issued by the Superintendent thus indicates that the reports submitted by CRCL, Mumbai and Anacon Laboratory, Nagpur were not contradictory in nature considering the tests directed to be carried out. The decision in DINESHCHANDRA JAMNADAS GANDHI VERSUS STATE OF GUJARAT 1989 (1) TMI 222 - SUPREME COURT refers to challenge to the order of conviction under the provisions of the Food Adulteration Act, 1954 and holds that offence of food adulteration is a socio-economic offence. It is not found that the appeal gives rise to any substantial question of law for consideration. The order passed by the CESTAT on 10-5-2023 does not call for any interference. The Customs Appeal is dismissed.

Summary

Issues Involved:
1. Contradictory test reports and their implications.
2. Jurisdiction and authority of the CESTAT to order provisional release.
3. Compliance with Food Safety and Standards Act, 2006 and related regulations.

Summary:

1. Contradictory Test Reports and Their Implications:
The respondent imported Arecanut/Betelnut, and samples were tested by CRCL, Mumbai, and Anacon Laboratory, Nagpur. CRCL reported insect infestation, while Anacon certified the samples as fit for human consumption. The Superintendent of Customs sought further clarification from CRCL, which deferred to FSSAI-accredited labs for certain tests. Despite Anacon's favorable report, the Superintendent requested additional testing from CRCL, New Delhi, which declared the samples unfit for human consumption. The CESTAT found that the Superintendent's actions were not consistent with the regulations and that the initial tests by CRCL and Anacon were not contradictory, as they addressed different aspects.

2. Jurisdiction and Authority of the CESTAT to Order Provisional Release:
The Commissioner of Customs denied provisional release under Section 110A of the Customs Act, 1962, citing the unfitness of the goods for human consumption. The CESTAT overruled this, ordering provisional release, stating that the fitness for human consumption is beyond the scope of the Customs Act, 1962, and should be determined by FSSAI-accredited labs under the Food Safety and Standards Act, 2006. The High Court upheld this view, noting that the CESTAT acted within its jurisdiction.

3. Compliance with Food Safety and Standards Act, 2006 and Related Regulations:
The appellant argued that the referral to the CRCL, New Delhi, was justified under the Food Safety and Standards Act, 2006. However, the High Court noted that the Superintendent's request for re-testing was not in line with Regulation 9 and Regulation 10(9) of the Food Safety and Standards (Import) Regulation, 2017. The court emphasized that the initial favorable report from the FSSAI-accredited Anacon Laboratory should have been sufficient, and the subsequent actions by the Superintendent were not supported by the applicable regulations.

Conclusion:
The High Court dismissed the appeal, finding no substantial question of law. It upheld the CESTAT's order for provisional release of the goods, emphasizing that the determination of fitness for human consumption falls under the purview of the Food Safety and Standards Act, 2006, and should be conducted by FSSAI-accredited laboratories. The court also noted that the actions of the Superintendent were not in compliance with the relevant regulations.