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TMI Blog2015 (3) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer'. The supplier is not stationed in the country where the product is said to have been manufactured, except to state that the Port of loading is Indonesia, the name and address of the manufacturer has been withheld and not furnished. The name and complete address of the manufacturer and in case the manufacturer is not the packer, the name and complete address of the packer are to be declared on every package of food if the article of food is manufactured or packed by a person under the written authority of the some other manufacturer under its brand name, the label shall carry the name and complete address of the manufacturing or packing unit as the case may be and also the name of complete address of the manufacturer or the company for and on whose behalf it is manufactured or packed or bottled. The consignor/exporter from Malaysia, M/s.BMC is not the 'manufacturer'. Therefore, if it is the case of the supplier that they have been authorised by the manufacturer to manufacture or pack the product, then the name of the manufacturer should have been disclosed in the packing. Mere mention that it is a product of the Indonesia does not satisfy the labelling requirement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Coconut Fine Grade from a supplier at Malaysia, M/s.Behn Meyer Chemicals (M) SDN BHD (M/s.BMC), the consignment was imported based on a commercial invoice issued by M/s.BMC, dated 27.05.2014. The consignment arrived at the Chennai Port on 26.05.2014 and Bill of Entry dated 07.06.2014, was filed. On Bill of Entry being presented, the fourth respondent, Deputy Director, Authorised Officer under the Act refused to issue the No Objection Certificate on the ground that the complete address of the manufacturer/packer is not mentioned in the product as required under Regulation 2.2.2:6.(i) of the Regulation. The petitioner submitted a representation on 01.09.2014, seeking for a personal hearing before the second respondent to provide further clarification and produce the necessary records. Thereafter, the petitioner addressed a representation through E-Mail to the second respondent on 08.09.2014 to consider their representation and set aside the rejection report by reviewing the same. This was followed by a reminder dated 10.10.2014. Ultimately, the petitioners sent a legal notice on 31.10.2014, for which a reply was sent by the fourth respondent on 02.02.2015. In the background of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sale or only labels it for such purposes. Therefore, it is submitted that the petitioner's supplier clearly falls within the definition of Manufacturer and therefore, the respondents are not justified in refusing to draw samples on the ground the consignment does not satisfy the Labelling requirement. 4. The learned counsel referred to the commercial invoice dated 12.05.2014, to show that the name of the exporter/supplier has been mentioned, which finds place in the packing of the consignment, the country of origin has been mentioned as Indonesia and the supplier is from Malaysia. Further, by referring to the bill of lading, it is submitted that the Port of loading is Indonesia and Shipper is M/s.BMC. It is further submitted that the bill of lading is clearly shows that the expiry date as May 2015 and therefore, there is urgency for the consignment to be released. The learned counsel referred to the submissions made by the petitioner in their representation dated 23.07.2014 and legal notice dated 31.10.2014 and submitted that the petitioner has produced all the documents and also expressed their willingness to abide by any condition that may be imposed by the fourth resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification and it is submitted that if there is any violation of any of the applicable provisions of law, sample will not be drawn from the imported consignment and rejection note will be forwarded to the Customs Authority pointing out the contravention, which came to light during Inspection and Verification process. 7. Sofar as the petitioner's case it is submitted that they submitted an application on-line seeking clearance of the imported consignment Desiccated Coconut Fine Grade . The inspection was carried out on 04.07.2014 and on inspection, it was found that the label was in complete contravention of the mandatory requirement under the Regulations. It is submitted that the labels as well as the certificate of origin submitted by the importer states that the country of origin is Indonesia i.e., stating that the product was produced in Indonesia and the certificate of origin was issued by M/s.BMC at Malaysia stating the goods were produced or processed in Indonesia. The other documents namely, Invoice, Bill of Lading, Certificate of Origin and Phytosanitary Certificate, it is mentioned that the shipment is made from Indonesia to India. Therefore, it is submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not arise. By referring to the legal notice, dated 31.10.2014, issued by the petitioner to the respondents, it is submitted that the petitioner has admitted that M/s.BMC are only suppliers and without placing the correct facts and without satisfying the labelling requirements, the petitioner attempts to find fault with the department to state it is a bad interpretation of the statutory Regulations. Further, it is submitted that the guidelines was issued in 2012 and the requirements mentioned therein are minimum labelling requirements and even going by the said guideline, the petitioner's label does not disclose the name of the manufacturer except to state it is the product of the Indonesia. With the regard to the imports done through other Ports in 2012 and 2013, during the period when the Regulations came into force, those imports have been done, however the facts are not very clear and the petitioner cannot take advantage of any illegality in the past. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Centre for Public Interest Litigation vs. Union of India Ors., in W.P.(C).No.681 of 2004. Reliance was also placed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e empowers the authorised officer functioning under the Act to refuse to draw samples if the labelling requirement is not satisfied. 12. As rightly submitted by the learned counsel appearing for the respondent that in exercise of power under Article 226 of the Constitution, this Court cannot direct the Authority to do a particular act, which the statute does not authorised him to do. The scope of judicial review will be restricted to the decision making process whether there was any arbitrariness in the manner in which the Authorised Officer has acted whether he has disregarded the statutory provisions or failed to follow the mandatory procedure or the conduct/action of the Officers does not satisfy the Wednesbury principles or reasonableness. 13. After elaborately hearing the arguments by the learned counsel for the petitioner and carefully perusing the averments made in the affidavit as well as in the representations and the legal notice except for a faint plea that there is violation of principles of natural justice, the petitioner has not made a specific allegation as to how they were put to a disadvantage or as to how the Authorised Officer failed to adhere to the proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, and also the name and complete address of the manufacturer or the company, for an on whose behalf it is manufactured or packed or bottled. 18. On a reading of the above provision, it makes it clear that the name and complete address of the manufacturer and in case the manufacturer is not the packer, the name and complete address of the packer are to be declared on every package of food if the article of food is manufactured or packed by a person under the written authority of the some other manufacturer under its brand name, the label shall carry the name and complete address of the manufacturing or packing unit as the case may be and also the name of complete address of the manufacturer or the company for and on whose behalf it is manufactured or packed or bottled. The consignor/exporter from Malaysia, M/s.BMC is not the 'manufacturer'. Therefore, if it is the case of the supplier that they have been authorised by the manufacturer to manufacture or pack the product, then the name of the manufacturer should have been disclosed in the packing. Mere mention that it is a product of the Indonesia does not satisfy the labelling requirement. It is not in disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the labelling requirement. Taking into consideration the fact that the label was not affixed along with the container was one of the ground to direct samples to be drawn in the said case. The fact of the said case was clearly distinguishable with that of the facts of the present case and therefore, the decision does not render any assistance to the case of the petitioner. 20. The decision in the case of M/s.Avenue Impex vs., The Commissioner of Customs (Seaport-Import) Ors., (supra) directions were issued to release the goods by following an order passed by the CESTAT in another connected appeal and goods were released subject to the condition that the importer undertakes to provide the necessary details to comply with the local laws at the time of repacking and the relabelling of the case in the Customs bonded area before the necessary Customs clearance is given. The said decision is of little assistance to the case of the petitioner, since even in this Writ Petition the petitioner has failed to disclose the name of the manufacturer, but would seek to interpret the definition of manufacturer under Section 3(zd) to be an inclusive definition and the petitioner's sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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