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TMI Blog2016 (5) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... rements in terms of the FSS Regulations and FSS Packaging Regulations. Although the Petitioner admitted to having affixed labels on the master boxes after they arrived in India, it is evident from the affidavit of the Customs authorities and the letter of the CWC that neither of them gave any permission to the Petitioner to do so. Further, it is evident that the FSSAI also permitted the affixation of the labels on imported food articles only to a limited extent. Commissioner of Customs will initiate an inquiry into the affixation of labels in the present case by the Petitioner on the master boxes after they arrived in India, and while they were at the CWC warehouse, without the permission of either the Customs or the CWC. The purpose of the enquiry would be ascertain where and how the lapses occurred, and what action requires to be taken against those involved including the importer and his CHA and other employees as well as officers/employees of the Customs and/or CWC. The enquiry will be completed within a period of three months from today. Appropriate action in terms thereof will be taken against all those found responsible for the lapse. - Decided against the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FSSAI (Respondent No. 2), the Joint Commissioner of Customs, ICD, Patparganj, Delhi, The Deputy Commissioner of Customs (Import Shed) (Respondent Nos. 3 and 4 respectively). 6. UNPL placed orders on GU Energy Labs, 1609 4th St. Berkeley, CA, USA on 5th June 2015 for supply of 'energy gel' and 'energy chews' amounting to USD 13,317.60. Pursuant to the above order, the said goods were shipped on 13th June 2015. The place of delivery was the Inland Container Depot (ICD), Patparganj. It terms of the FSS Act for the import of any food articles, the FSSAI issues a 'No Objection Certificate' ('NOC') in order that the Customs Department may issue an 'Out of Charge' ('OOC') order. The FSSAI grants such NOC on the basis of the report of a Food Analyst at a lab notified by the FSSAI. For the purpose of a 'one window' clearance, the Customs has, in terms of Circular No. 3/2011-Cus dated 6th January 2011, devised a procedure of sending an online request to the FSSAI for getting the NOC for the purpose of clearance of goods particularly at ICD, Tughlakabad and Patparganj. 7. On arrival of goods at ICD, Patparganj, the Petitioner fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that there is a software glitch at the end of the Customs Department as a result of which the Indian Customs Single Window Project is not functioning properly. Because of this, the Customs Department has not been able to transmit the 'BE message' to FSSAI, even though the assessment has been completed in respect of the said bill of entry. Unless and until, the online communication takes place, the FSSAI would not be in a position to give the clearance. Mr.Nijhawan, the learned counsel appearing on behalf of the Customs Authority, requests for some time to ensure that the glitch is removed. Re-notify on 26th November 2015. Dasti under the signature of the Court Master. 11. On the subsequent hearing on 26th November 2015 it was realized that the Customs Department had not transmitted to the FSSAI the B/E message. The Court then passed the following order: The 'B/E' shall be manually supplied by the Customs Authorities to the FSSAI within one day. The FSSAI shall also draw the samples, if necessary, within one day. The report of the FSSAI shall be made available to this Court by the next date of hearing. Renotify on 03.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, (1) foods for special dietary uses or functional foods or neutraceuticals or health supplements means: (a) foods which are specially processed or formulated to satisfy particular dietary requirements which exist because of a particular physical or physiological condition or specific diseases and disorders and which are presented as such, wherein the composition of these foodstuffs must differ significantly from the composition of ordinary foods of comparable nature, if such ordinary foods exist, and may contain one or more of the following ingredients, namely:- (i) plants or botanicals or their parts in the form of powder, concentrate or extract in water, ethyl alcohol or hydro alcoholic extract, single or in combination; (ii) minerals or vitamins or proteins or metals or their compounds or amino acids (in amounts not exceeding the Recommended Daily Allowance for Indians) or enzymes (within permissible limits); (iii) substances from animal origin; (iv) a dietary substance for use by human beings to supplement the diet by increasing the total dietary intake; (b) (i) a product that is labelled as a Food for special dietary uses or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2010) 5 SCC 1 and to the fact that FSS Regulation 2011 makes a specific reference to 'Proprietary Food' under Regulation 2.12.1 read with Appendices A and B thereof. It is further submitted that once the consignment satisfied the requirement of the FSS Act there was no justification for FSSAI to withhold the NOC. 18. Countering the above submissions it is submitted by Ms. Ahmadi that the understanding of the FSSAI was that unless specifically permitted under any of the regulations under the FSS Act, proprietary food is generally not permissible to be imported in terms of Section 22 of the FSS Act. It is pointed out that none of the Regulations mention energy gel or energy chews products. Therefore, according to the FSSAI, the consignment cannot be permitted to be imported under Section 22 of the FSS Act. 19. Having considered the above submissions in light of the relevant provisions of the FSS Act and FSS Regulation 2011, the Court is of the view that the submission of the FSSAI that proprietory foods fall entirely outside the ambit of the FSS Act is not borne out on a correct and holistic reading of Section 22 thereof together with the FSS Regulation 2011 and other R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is concerned, it is not clear from the said letter whether any of the packages contained any of the above information as required by Clauses 6, 8 and 9 under Regulation 2.2 of the Food Safety and Standards (Packaging and Labelling) Regulations 2011 ('FSS Packaging Regulation 2011'). Although the report of the OPL does appear to indicate that the samples sent to it did contain some of the above details, the FSSAI is right in its contention that it was not kept in the loop when samples were drawn by the Customs and sent to OPL and this was not in accordance with the procedure under Circular 9 of 2015. 24. Ms. Manish, learned counsel for the Petitioner, pointed out that as far as the Petitioner is concerned, it cannot be blamed for going along with the Customs Department which drew the sample and sent it to OPL in terms of the earlier Circular No. 3 of 2011. It is also pointed out that necessary charges for getting the samples tested by OPL have already been paid by the Petitioner. It was stated that the Petitioner cannot be asked to again incur expenses for getting the samples drawn and tested afresh. 25. The Court nevertheless is of the view that the Customs Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be imported. In the absence of the date of manufacture, it was not possible to very if the shelf-life of the products was 60% or not. According to FSSAI, none of the packages of the imported consignments satisfied the requirement of the FSS Regulations 2011. 16. The above stand of the FSSAI was contested by Ms. Manish, learned counsel for the Petitioner. She volunteered that if the packets were photographed, they would show that the details are available on the packets which, according to her, satisfied the requirements of the FSS Packaging Regulations 2011. 17. The Court in its order dated 15th February 2016 directed as under: 4. Since this is a contentious issue and since the Court does not have before it any photograph or specimen of the packets which have been imported, the Court is constrained to direct that both the representative of the FSSAI and the AR of the Petitioner to remain present at the Customs Warehouse Officer on 19th February 2016 at 11 am. On the strength of the present order, the Superintendent-in-Charge of the Customs Warehouse where the imported consignment is stored at present will be permit the AR of the Petitioner and the representative of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. While the affidavit states that it is the importer who prepared and affixed the labels, the affidavit is silent on where exactly the labels were affixed. During the course of her submission today, learned counsel for the Petitioner volunteered that these labels were affixed by the Petitioner in the Customs area itself and that there were circulars that permitted the Petitioner to do so. It is also stated that the permissions were obtained from the concerned Custom officials for that purpose. However, these details do not find place in the affidavit. 3. It appears to the Court that the Petitioner has not been forthcoming with the entire facts of the matter. The Court gives the Petitioner one more opportunity to come clean on where the labels were printed, which Customs officials permitted it to enter the Customs area and affix the labels. The Petitioner will also enclose the copy of the orders/permissions granted to the Petitioner for that purpose. 4. Mr. Kamal Nijhawan, learned Senior Standing Counsel for the Customs states that they will file a detailed response to the affidavit already filed and to the further affidavit that is to be filed, before the next date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner (DC) (Import Shed) seeking permission for labelling the imported goods. However, this labelling has to happen prior to the registration of the goods and not after payment of the duty, if any. The AC/DC Shed concerned while giving such permission is expected to instruct the Shed Officer to verify compliance. If it is found that the importer has got the B/E registered without such permission, and the imported goods do not bear the requisite labels, appropriate action including penalty proceedings is to be initiated under the Customs Act, 1962 ( CA ). The above procedure has been made available to all the goods covered under the DGFT Notification dated 24th November 2000. 23. It is pointed out that the FSSAI has issued the following instructions on 21st December 2015 regarding rectifiable and non-rectifiable labelling requirements in the Customs bonded warehouses by importers: Subject: Rectifiable and Non-Rectifiable Labelling requirements reg. Sir, With regard to the subject cited above, this is to inform that the labelling requirements and the manner in which these are to be depicted on the label of the food products are mentioned in the Food S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, it is to inform that no permission from Customs was produced before CWC, neither any label was affixed on the boxes of M/s. Unlimited Nutrition Private Limited, in the presence of CWC nor CWC has charged any fee regarding the labelling of boxes from the party. 27. In the terms of the above affidavit, it transpires that the Petitioner has not been forthcoming as to who, if any one at all, gave permission for affixation of labels on the master boxes while they were lying in the CWC warehouse. This aspect will have to be enquired in to by the Commissioner of Customs to unearth the truth. It is a matter of some concern that an importer has been able to affix labels on imported food articles after their arrival in India and while being kept at the notified warehouse. 28. The Customs however states that as regards the Petitioner's request for re-export of the goods, the adjudication authority will, after taking into account the extant rules and regulations, decide the issue. It is stated that since the goods have failed to meet the regulatory labelling requirement of the FSS Act and the FSSA Regulations 2011, the goods are liable for confiscation under Section 111 (d) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 31. The above judgment of the Bombay High Court was affirmed by the Supreme Court by its order dated 19th August 2015 in Special Leave Petition (Civil) No. 23872-23874 of 2014 (Food Safety and Standards Authority of India v. Vital Nutraceuticals Pvt. Ltd.). The Supreme Court dismissed the special leave petition holding that no ground for interference is made out. Mr. Pracha therefore submits that in view of the above decision of the Bombay High Court, the FSSAI may not be able to straightway issue any further advisories regarding labelling requirements. 32. On the other hand it is pointed out by Mr. Kamal Nijhawan, learned counsel for the Customs that there is a Coordination Committee comprising representatives of both the FSSAI as well as the Customs which meets once in a month to sort out the issue concerning import of food items that have to comply with the requirements of FSS Act and the Rules and Regulations framed thereunder. 33. The main object of the FSS Act is to lay down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case although the Petitioner admitted to having affixed labels on the master boxes after they arrived in India, it is evident from the affidavit of the Customs authorities and the letter of the CWC that neither of them gave any permission to the Petitioner to do so. Further, it is evident that the FSSAI also permitted the affixation of the labels on imported food articles only to a limited extent. viz., in order to (i) declare whether the product is Veg or Non Veg (ii) disclose the name and address of the importer and (iii) indicate the FSSAI Logo and license number. It does not extend to affixing labels on the imported food articles after they have landed in India to indicate (i) the name of the food item (ii) the list of ingredients (iii) Nutritional Information (iv) Declaration regarding food additives (v) Name and complete address of the manufacturer (vi) Net quantity (vii) Lot/Code/Batch identification (viii) Date of manufacture or packing (ix) Best before and use by date (x) Country of origin for imported and (xi) Instructions for use. 38. The above classification of what can be per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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