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TMI Blog2011 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents, their servants and agents for release of the goods in question for reprocessing the same on such terms and conditions as this Hon'ble Court deems fit and proper and after reprocessing the same, be permitted to clear the goods for home consumption after carrying out legal requirements, inclusive of test. [B] Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondents No.2 to 5 to decide representations for provisional release of goods imported vide Bill of Entry No.000198 dated 6.8.2010, Kandla Port;" The facts of the case as appearing in the petition are that the petitioner company in the regular course of its business, entered into a contract with M/s PEC Limited for the purchase of 5,000 MT +/- 2% "Cottonseed Oil of Edible Grade" (fit for human consumption after further refining) on high seas sale basis. On arrival of the cargo at Kandla Port, the petitioner company filed Bill of Entry No.000198 dated 6.8.2010. Since the cargo was not being released, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose, intimating this office. [iii] On receipt of the report from CFL, Vadodara, confirming the standards laid down in Prevention of the Food Adulteration Rules, 1955, the cargo may be released by Central Excise Authorities. [iv] Report may be sent to this office." In the footnote to the said letter, the petitioner company was directed to follow the instructions and release the cargo only after confirmation from Central Excise Authorities/customs, and that final assessment only could be done after conformation with the PFA standards. Out of the entire cargo imported, the petitioner company lifted 135.950 MT for refining the same at its plant at Thor, District Mehsana. Vide letter dated 18.9.2010, the Customs Department directed the petitioner company to stop the delivery of cargo lifted till further order. Vide Detention Memo No.1/2010-11, the officers of Central Excise Department, Kadi detained the cargo which was lifted on 19.9.2010 after which, the Directorate of Revenue Intelligence (DRI), Gandhidham drew 12 samples of the said cargo and prepared a panchnama in that regard on 22.9.2010. Subsequently, by a communication dated 23.9.2010 issued by the Customs Department to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued to the petitioner pursuant to the seizure and inquiry. That the Port Health Officer, Kandla had drawn four representative samples from four different compartment vessels and sent the same to the Food & Drugs Laboratory, Vadodara, which had issued four test reports, stating that the samples do not conform to the standards and provisions laid down under the PFA Rules for Cottonseed Oil on account of iodine values being more than the prescribed limit and very low acid value in comparison to other cottonseed oil. Thereafter, counter part samples were sent to the Central Food Laboratory, Pune, and the result of the analysis of the Central Food Laboratory, Pune, indicates that the samples do not conform to the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955 (PFA Rules), for cottonseed seed oil on account of high acid values. According to the respondents, the petitioners had intentionally declared the goods as "fit for human consumption after further refining" to show that the imported goods were of non-edible grade and would be made edible after further refining and to avail of the benefit of Circular No.29/97-Cus dated 31.07.1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Edible Grade) which conform to the PFA standards, subsequent reports of the Central Food Laboratory, Pune, indicate that the goods in question do not meet with the PFA standards. It was submitted that in the show cause notice, the respondents have come out with a new case that the goods are Refined Cottonseed Oil of Non-Edible Grade, whereas none of the reports in question indicate that the goods in question are of Non-Edible Grade. Inviting attention to the unreported decision of this Court in the case of M/s Teej Impex Pvt. Ltd., through Shri Vijay Joshi, Commissioner of Customs and others, rendered on 4.12.2006 in Special Civil Application No.12386 of 2006, it was submitted that in a similar set of facts, this Court has granted permission for re-processing the goods by issuing certain directions taking care of the interests of the revenue. It was submitted that the facts of the present case being similar to the facts of the said case, similar directions are required to be issued to the respondents subject to such conditions as may be deemed fit by this Court. Various other contentions have been also been advanced as regards the variations in the reports of different laboratori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich conform to the provisions of Prevention of Food Adulteration Act, 1954 and the Rules made thereunder are allowed to be imported into India and the consignments which do not conform to the provisions of the PFA Act and the PFA Rules are required to be dealt with in the manner prescribed in Circular No.58/2001-Cus. Dated 25.10.2001 and as such, the goods in question are required to be re-exported or destroyed. Dealing with the last contention, Mr. K.B. Trivedi, learned counsel placed reliance upon a decision of the Bombay High Court in the case of Commissioner of Customs (Import), Raigad v. Amrit Banaspati Co. Ltd., 2007 (218) ELT 336 (Bom.) wherein the Court has held that the fact that section 18 of the PFA Act empowers the Court to allow clearance of the domestic goods subject to reprocessing, cannot be a mere ground to hold that the Tribunal constituted under the Customs Act cannot allow redemption of confiscated goods subject to reprocessing. It was held that in the absence of any bar under the Customs Act or the PFA Act, the Tribunal in an appropriate case is entitled to allow redemption of confiscated goods subject to reprocessing. It was accordingly, submitted that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PFA Rules. In the aforesaid backdrop, examining the facts of the present case, a perusal of the various reports given by the different laboratories indicates that there are wide variations in the reports received from different laboratories. The Chemical Examiner, Customs Laboratory, Kandla, gave his test report dated 12.08.2010 stating that the goods in question were cotton seed oil having acid value = 0.04 and Iodine value =108.8. The report dated 12.08.2010 of the Gujarat Laboratory is to the effect that the sample conforms with prescribed quality in respect of PFA Rules. The test reports of the Food & Drugs Laboratory, Vadodara, dated 12.8.2010 indicate that the sample is edible oil falling under Item No.A.17.02 of the PFA Rules. The report further says that the sample does not conform to the standards and provisions laid down under the PFA Rules in respect of iodine value. (The iodine value ranges from 113.85 to 115.23, the normal range being 98 to 112.) As per the said report the result of analysis of sample also shows very low acid value in comparison of other crude cottonseed oil. The test reports of the Central Food Laboratory, Pune, dated 21.8.2010 are to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said report is 114.78). As noted hereinabove, the certificate of analysis issued by the Director, Central Food Laboratory, Pune, indicates that Iodine value is more than 112.0 and that Bellier test is less than the prescribed standard. However, from the said report it is not clear as to whether the goods in question are of non-edible grade, as is sought to be contended on behalf of the respondents, or as to whether the goods can be made fit for human consumption upon reprocessing. In support of the contention that the goods in question are of non-edible grade, the learned Senior Standing Counsel for the respondents has placed reliance upon various parameters provided under the Prevention of Food Adulteration Rules, to submit that since the sample does not meet with the requirements laid down there under, the same are of non-edible grade. However, since show cause notice has already been issued to the petitioner and dealing with the said contention would amount to touching the merits of the case, the Court has refrained from dealing with the said contention. As noted hereinabove, the record of the case as placed before this Court by way of affidavit in reply of the respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Rules, 1955. This shall be done within one week from the date of receipt of this order. The Laboratory shall submit report within one week on receipt of the sample. On receipt of the report, if the report is in the affirmative, i.e., the Laboratory finds that, after re-processing, the goods will be fit for human consumption conforming to the standards of cottonseed oil prescribed in the Prevention of Food Adulteration Rules, 1955, then the petitioner shall be permitted to reprocess the goods within one week from the date of receipt of the report. After reprocessing of the goods, the respondents shall send samples of the re-processed goods again to the Central Food Laboratory, Mysore ,for testing as to whether the re-processed goods are fit for human consumption conforming to the standards of cottonseed oil prescribed in the Prevention of Food Adulteration Rules, 1955. The Laboratory shall submit report within one week of the receipt of the sample. If the Laboratory submits the report in favour of the petitioner, the goods shall not be detained on this ground and shall be released in accordance with law; If either of the reports is against the petitioner, then the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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