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TMI Blog2014 (8) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... hocolates where the labelling was found to be defective, the petitioner shall cure the same within the customs warehouse by affixing a non-detachable label giving all particulars as are necessary under the Labelling Regulations. The respondent no.2 shall also ensure that sufficient access to the goods is provided to the petitioner in order to enable the petitioner to affix the necessary labels on those goods which have been found to be non-compliant of the Labelling Regulations. FSSAI shall ensure that the goods in question are cleared once the necessary labels have been affixed as directed. - Decided partly in favor of appellant. - W.P.(C) 3708/ 2014 & CM No.7515/2014 - - - Dated:- 20-8-2014 - MR. VIBHU BAKHRU, J. For the Petitioner : Mr Virag Gupta. For the Respondents : Mr Vijay Chandra Jha with Ms Sonia Sharma, JUDGMENT VIBHU BAKHRU, J 1. Belgium is known for its chocolates amongst other things. And, Guylian is a renowned brand of Belgium chocolates, which are sold in several countries. As coveted as these chocolates may be, the Food Safety and Standards Authority of India (hereinafter referred to as the 'FSSAI') has found these chocolates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question were perishable in nature with limited shelf life and a consignment of similar chocolates from the same manufacturer imported earlier, was found to be in conformity with the parameters set by FSSAI and cleared. 6. The Assistant Commissioner (Customs) - respondent no.2, by its letter dated 22.03.2014, directed FSSAI to collect samples of the goods as FSSAI was neither collecting samples of goods nor accepting the samples that were sent to them. Subsequently on 07.04.2014, the goods were inspected by FSSAI and samples of only four types of chocolates out of twenty types of chocolates were taken and tested by FSSAI and a NOC with respect to those four types of chocolates was issued. FSSAI did not draw samples of eight types of chocolates citing labelling defects and no reason was assigned for not drawing samples of the remaining eight types of chocolates. Therefore, respondent no.2 addressed a letter dated 30.04.2014 to FSSAI to assign reasons for not drawing samples of those eight types of chocolates. 7. In response, FSSAI addressed a letter dated 05.05.2014 to respondent no.2 stating that NOC with respect to eight types of chocolates was refused on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 8 consignments have been rejected on the grounds of violation of regulation 2.2.2.9 of FSS (Packaging Labelling) Regulation, 2011 wherein the petitioner has fail to declare on the label the date, month, year in which the commodity is manufactured, packed or pre-packed. Further in case of products having more than three months best before date as well as products having less than three months shelf life validity have to state the date, month and year in which the commodity was manufactured. It is further submitted that 8 products have been rejected on the grounds of non-compliance with regulation 2.7.4 Chocolate of Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011 wherein the chocolate products shall not contain any vegetable fat other than cocoa butter. Filled Chocolates means a product having an external coating of chocolate with a centre clearly distinct through its composition from the external coating, but does not include flour confectionery pastry and biscuit products. The coating shall of chocolate that meets the requirements of one or more of the chocolate types mentioned above. The amount of chocolate component of the coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations. 13. With respect to the first issue regarding the requirement of labelling, it is relevant to refer to section 23 of the FSS Act. Section 23 of the FSS Act prohibits any person from manufacturing, distributing, selling or exposing for sale any packaged food product which are not marked and labelled in the manner as specified by Regulations. Section 23 of the FSS Act reads as under:- 23. Packaging and labelling of foods.--(1) No person shall manufacture, distribute, sell or expose for sale or despatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labelled in the manner as may be specified by regulations: Provided that the labels shall not contain any statement, claim, design or device which is false or misleading in any particular concerning the food products contained in the package or concerning the quantity or the nutritive value implying medicinal or therapeutic claims or in relation to the place of origin of the said food products. (2) Every food business operator shall ensure that the labelling and presentation of food, including their shape, appearance or packaging, the packaging materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. In the present case, admittedly the labels on goods in question indicates the best before date, however, the date of manufacturing is not mentioned on the label. According to the FSSAI, eight types of the chocolates have been rejected on account of failure to mention the manufacturing date on the label. The question that remains to be addressed is whether this defect is curable. The learned counsel for the respondent has referred to an ad-hoc instruction issued by the FSSAI on 15.12.2011. In terms of the said instruction, if the date of manufacture mentioned on the label is in the Julian format, the defect could be rectified in the customs warehouse by affixing a sticker. The relevant portion of the said instructions is quoted below:- The 'Date of manufacture' will be given in date, Month and year format on sticker in addition to the 'Date of manufacture' in Julian format already present in the labels along with the rectifiable labelling requirements viz. Name and address of the importer and vegetarian/non-vegetarian logo. The sticker should be pasted in a way that it does not mask the original 'Date of manufacture' in Julian format present in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct being purchased/consumed by him, a non-detachable sticker providing all information would sufficiently meet this object. 23. The next question that needs to be addressed is whether the goods in question, containing vegetable fat in the fillings, are compliant with the requirements of Regulation 2.7.4 of Food and Additives Regulations. Regulation 2.7.4 of Food and Additives Regulations defines 'Chocolate' and the relevant extract of the said clauseis quoted below:- 2.7.4: Chocolate Chocolate means a homogeneous product obtained by an adequate process of manufacture from a mixture of one or more of the ingredients, namely, cocoa beans, cocoa nib, cocoa mass, cocoa press cake and cocoa dust (cocoa fines/powder), including fat reduced cocoa powder with or without addition of sugars, cocoa butter, milk solids including milk fat. The chocolates shall not contain any vegetable fat other than cocoa butter. The material shall be free from rancidity or off odour, insect and fungus infestation, filth, adulterants and any harmful or injurious matter. The chocolates shall be of the following types:-- Milk chocolates is obtained from one or more of cocoa nib, cocoa mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Food and Additives Regulations are filled chocolates i.e. a shell made with chocolate with a filling inside. It is not disputed that the chocolate shell itself does not contain any vegetable fat. The vegetable fat is found in the filling and on this basis the FSSAI has found the goods in question to be non-compliant with the said Regulation of the Food and Additives Regulations. In my view, this decision of FSSAI cannot be sustained as Regulation 2.7.4 of the Food and Additives Regulations clearly indicates that in case of filled chocolates the coating shall be of chocolates that meets the requirement of one or more of the chocolate types mentioned in Regulation 2.7.4. It is, thus, apparent that specification with regard to vegetable fat has to be confined only to the chocolate shell and not to filling contained by the chocolate shell. Clause 2.2.2 of the Codex Standard for Chocolate and Chocolate Products describes 'Filled Chocolate' as under :- 2.2.2 Filled Chocolate Filled Chocolate is a product covered by a coating of one or more of the Chocolates defined in Section 2.1, with exception of chocolate a la taza, chocolate familiar a la taza and products d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed earlier, is not sustainable. Accordingly, it is directed that the said goods be cleared subject to the petitioner complying with the other requirements. It is noted that goods in question have been lying in a warehouse since 03.01.2014. The goods being perishable are required to be cleared with utmost expedience. Respondent no.2 is also directed to ensure that clearance of goods is not impeded on account of any further clearances from FSSAI in respect of the eight types of chocolates that FSSAI had found to be non-compliant only in respect of Regulation 2.7.4 of the Food and Additives Regulations. 28. With respect to the eight types of chocolates where the labelling was found to be defective, the petitioner shall cure the same within the customs warehouse by affixing a non-detachable label giving all particulars as are necessary under the Labelling Regulations. The respondent no.2 shall also ensure that sufficient access to the goods is provided to the petitioner in order to enable the petitioner to affix the necessary labels on those goods which have been found to be non-compliant of the Labelling Regulations. FSSAI shall ensure that the goods in question are cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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