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TMI Blog2014 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent / importer has failed to adhere to the said statue and rules framed t here under, and the Customs authorities were also mandated in the above said circulars/ instructions to strictly comply with the provisions of the PFA Act and rules framed there under, the non - furnishing of the full address of the manufacturer and the d ate of manufacturer, on the part of the first respondent/ importer, cannot be condoned. The Tribunal has not referred to any rules or regulations under which it can direct the authorities to re–pack and re–label the impugned goods in custom bonded premises and, thereafter, test the same. In view of the subsequent development, viz., the shelf life of the product itself has expired. No useful purpose will be served in re–packing and re–labeling the imported food product for the purpose of testing it - Decided in favour of Revenue. - C.M.A. NO. 1088 OF 2012 & M.P. NOS. 1& 2 OF 2012 - - - Dated:- 8-10-2012 - C. NAGAPPAN AND M. STHYANARAYANAN, JJ. For the Appellant: Mr. Xevier Felix, SCGSC For the Respondent : Mr. B. Satish Sundar for R-1 JUDGMENT:- M.SATHYANARAYANAN, J. 1. This appeal is preferred against the Final ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to provide any other details required to comply with the local laws at the time of re - packing and re - labelling the impugned goods in the Customs bonded area before customs clearance and they are also undertaking to ensure that the Port, Health Authorities would be called upon to test the consignment before the customs clearance and, hence the prayer made by them is reasonable ands accordingly, set aside the impugned order and directed the. customs authorities to allowed the 1st 'respondent herein to re-Pack and re label the impugned goods in a customs bonded premises ;and there after,it could be open to the Port Health Authorities to. test and certify the impugned goods ,and fresh, order may be passed by the original authority after certification is done by the Port Health Authorities and allowed the appeal in the above terms. Aggrieved by the said impugned order, the Commissioner of Customs has: preferred this statutory appeal under Section 130 of the Customs Act. 3. Mr. S. Xavier Felix, learned Central Government Standing Counsel appearing for the appellant submits that Rule 32 of the PFA Act stipulates that the date. of manufacture should be indicated on the pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then his address may be verified from the relevant documents like certificate of analysis, invoice, etc. Though the present consignment does not carry date of manufacture on the label but it indicates the expiry date as best before April, 2012 and it contains the manufacturers name and the 1st respondent has produced the declaration from the exporters regarding the expiry date of the product and also produced the relevant documents and in view of the above, the Tribunal held that the prayer made by the 1st respondent is reasonable and passed the impugned order and the conclusion of the Tribunal is just and proper. In support of his submission, learned counsel for the 1st respondent relied on the following decisions : - (1) Chandna Impex Pvt. Ltd.- Vs. Commissioner of Customs, New Delhi (2011 (269) ELT 433 (S.C.)); (2) Commissioner of Customs (Import), Raigad V. Amrit Banaspati Co. Ltd. (2007 (218) ELT 336 (Bom)); and (3) Gokul Refoils Solvents Pvt. Ltd. Vs Union of India (2012 (278) E L T 433 (Cal.)). 5. This Court, at the time of admission of this appeal, framed the following substantial questions of law : - 1) Whether the CESTAT is right in allowing appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 has clarified that all authorized officers / PHOs / APHOs are to check the claims on the labels as per the labeling requirements prescribed under PFA Rules, 1955 at their level itself and in case of any deficiencies on the label, such samples may either not be drawn if there are obvious deficiencies noted at the time of sampling or may be returned to Customs Authorities on the same day but may not be sent to authorized laboratories for analysis? 6. The ministry of Commerce and Industries, Department of Commerce, Government of India, has issued a notification dated 30th July, 2001, wherein it has been stated among other things that import of all such edible / food products, domestic sale and manufacture of which are governed by Prevention of Food Adulteration Act, 1954 (for short PFA Act‟) shall also be subject to the condition that, at the time of importation, the products are having a valid shelf life of 60% of its original shelf life. Shelf life of the produce is to be calculated, based on the declaration given on the label of the product, regarding its date of manufacture and the due date for expiry (emphasis supplied) and it has been stated in the said notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mples of such product shall not be sent to the laboratories for analysis. 9. Food Safety Standards Authority of India of Ministry of Health Family Welfare, Government of India, has issued a clarification dated 30th June, 2011, stating that in respect of the consignment imported by the 1st respondent herein, viz., M/s. Avenue Impex, Chennai, it was inspected on 29th June, 2011 for drawing the sample by the Technical Assistant, FSSAI, Chennai and it does not meet the labeling requirement under the PFA Act and the Rules framed thereunder and, hence, the sample could not be drawn for analysis. 10. It is the submission of the learned counsel for the appellant before the order, was passed by ,the Original Authority, Viz., Additional Commissioner of Customs Group I, the 1st respondent furnished two letters of the manufacturer, viz., M/s 3 Arroyos, Buenos Aires, wherein details, with regard to the date of manufacture and expiry date have been given and. the 1st respondent has also submitted a representation dated 8th Julys 2011, to the Deputy Commissioner of customs Group1, stating` that the supplier, in their export declaration, has clearly mentioned the manufacturing and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into India, where, as per the labeling requirements, the requisite information as shown in the circular are not given on the label. As per clause (3), the name and address of the manufacturer, the date of manufacture and best before date are to be given. It has been further indicated in the said letter, if the imported product is not meeting with the label requirements given in the said circular, samples of such products shall not be sent to the laboratories for analysis. Since the notification / circular and letters of the abovesaid authorities had clearly indicated that in the absence of details regarding the address of the manufacturer and the date of manufacture, the sample of the food product imported cannot be drawn and, therefore, the Technical Assistant of FSSAI, Chennai, has not drawn the samples of the imported food for analysis and it has also been indicated by the authorized officer of Food Safety Standards Authority of India, vide his letter dated 30th June, 2011 address to the Deputy Commissioner (Customs Docks) Seaport, Custom House, Chennai. 12. Learned counsel appearing for the 1st respondent has drawn the attention of this Court to the judgments cited above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, can be permitted clearance on execution of a bond, if accepted, would defeat the very object of the Act, which prescribes import / export of goods, which do not conform to the prescribed norms or standards and such an interpretation, which defeats the very object of the Customs Act cannot be accepted. As regards the stand taken by the Revenue that CESTAT is not barred to permit reprocessing of the imported goods, which are found to be sub standard and such powers can be exercised only by a court on contemplated under Section 18 of the 1954 Act, it was rejected on the ground that if the deficiency in the confiscated goods can be easily removed by reprocessing at the cost of the importer under the supervision of the customs officer, there is no reason as to why the confiscated goods cannot be permitted redemption, subject to reprocessing and it is not the case of the Revenue that under the Customs Act or under any other law, there is express bar to allow redemption of confiscated goods, subject to reprocessing. The Division Bench of the Bombay High Court, in the said decision, ultimately held that in appropriate cases it would be open to the Tribunal to allow redemption of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjudication and the High Court has failed to apply its mind as to whether it was substantial question of law or not and, hence, remanded the matter to the Tribunal for fresh adjudication on that question. 16. In Gokul Refoils Solvents Pvt. Ltd. vs. Union of India (2012 ()278) ELT 433 (Cal.)), import of crude Palm Oil was made and the appraising officer of the Customs drew samples from the consignment for testing and it was found that the samples do not conform to the standard of Palm Oil laid down under the relevant item numbers of Appendix B of PFA Rules on the ground that the acid value was higher than the prescribed limit. Writ petition was filed challenging the said order and it was dismissed by learned single Judge and, hence, appeal was preferred. The principal question of law that arose for consideration before a Division Bench of the Calcutta High Court in the above cited was Whether the Palm Oil sought to be imported by the appellant, was a prescribed good within the meaning of the Customs Act and the Calcutta High Court found that no rules and standards have been formulated yet under the Food Safety Standards Act, 2006 as well as under the PFA Rules for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot crossed the customs barrier, the above said guidelines dated 23rd March, 2012, can be made applicable and even before passing the order of adjudication by the original authority, the details with regard to the full name and address of the manufacture and the date of manufacture have been furnished and, therefore, there is nothing wrong in the impugned order passed by the CESTAT. 21. In response to the said submission, it is the submission of the learned counsel for the petitioner that the instructions / guidelines / circulars that were prevalent at the time of filing the bill of lading on 14th May, 2011 and bill of entry dated 23rd June, 2011 would alone have application an as per the said instructions, it is mandatory on the part of the importer to furnish full address of the manufacturer as well as the date of manufacture and, admittedly, those vital details have not been furnished by the importer and, hence, the samples were not drawn from the food items imported by the 1st respondent / importer and taking into consideration the said aspect, the original authority has rightly ordered confiscation and also imposed redemption fine, penalty and also re export of the goods im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of manufacture have been furnished and it has not been taken into consideration. 25. A perusal of para 5 of the order passed by the original authority would disclose that the 1st respondent / importer, vide their reply dated 7th July, 2011, requested the said authority to grant a personal hearing and , accordingly, personal hearing was fixed on 18th Nov., 2011and on that dated, the Managing Partners appeared and produced written submission and stated that although the date of manufacture is not given, best before label is there on the package and, further submitted that the import of oats being the first consignment, in future the address of the manufacturer and date of manufacture will be indicated and also submitted another letter dated 25th July, 2011 stating that since it is a bulk package, clauses (f) and (g) of Rule 32 of PFA Rules have no application. If really the particulars given by the manufacturer with regard to the date of manufacturer is available in paras 17 and 18 of the typed set filed on behalf of the1st respondent were given, it would have been considered by the original authority. But the facts narrated by the original authority would disclosed the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplement the order of CESTAT within a period of two weeks from the date of receipt of a copy of the order and, thereafter only, the present appeal came to be filed. 29. It was also brought to the knowledge of this Court, the shelf life of the imported food product, viz., Oats, had expired and the authorities constituted under the PFA Act have also launched criminal prosecution against the 1st respondent / importer alleging that the imported goods were misbranded. 30. The judgments of the Bombay High Court, cited above, relied on by the learned counsel for the 1st respondent / importer had rejected the argument of the importers that under Section 143 of the Customs Act, the imported goods, which do not fulfill the conditions prescribed under the PFA Act and Rules framed thereunder can be permitted clearance on execution of bond, if permitted would defeat the very object of the Act and, ultimately passed an order holding that the Tribunal ought to have ordered redemption of confiscated goods on payment of fine and penalty and, thereafter, further ordered for re processing and allowed clearance for home consumption. 31. A perusal of the order passed by the original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckage do not contain the said details. 35. Though it is contended by the learned counsel for the first respondent/ importer that the subsequent guidelines have been issued by the FSSAI dated 231-6 Jan, 2012, dispensing with such a requirement, in the considered opinion of this High court, the said notification only has prospective effect and it is settled position of law that administrative instructions do not have retrospective effect. 36. It is obligatory on the part of the first respondent/ importer to strictly adhere to the PFA Act and Rules framed there under and if the statue prescribed a thing to be done in a particular manner, it should be done only in that manner and not in any other manner. Since the first respondent / importer has failed to adhere to the said statue and rules framed there under, and the Customs authorities were also mandated in the above said circulars/ instructions to strictly comply with the provisions of the PFA Act and rules framed there under, the non-furnishing of the full address of the manufacturer and the date of manufacturer, on the part of the first respondent/ importer, cannot be condoned. 37. The Tribunal has not referred to any rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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