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TMI Blog2018 (1) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners have imported cotton seeds in seeds form, but claiming that the same are meant only for animal feed consumption. In fact, further contending that the cotton seeds are not capable of being used for sowing purposes. According to the petitioners, the cotton seeds used for animal feed is generally of inferior quality as compared to those used for sowing. The germination rate in the former case would be extremely low making it completely inviable for anybody to use the same for sowing. In fact, due to passage of time, since their import, the germination rate would further go down and therefore, seeds cannot be put to any use other than for animal feed consumption. Schedule-VII pertains to list of plants, imports of which are permissible on the basis of phytosanitary certificate issued by the exporting country and certificate of fumigation, if required. The conditions of import contained in Schedule-VII themselves are less stringent as compared to those prescribed in Schedule-V. This is otherwise also logical as in the present case, since Schedule-V covers cases where cotton seeds are imported for sowing, which would naturally have much wider impact on plant and insects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RA, ADVOCATES, MR HASIT DAVE, ADVOCATE AND MR HASIT DAVE, ADVOCATE For The Respondent (s) : MR ANKIT SHAH, ADVOCATE, UNSERVED-WANT OF TIM, MR ANKIT SHAH, ADVOCATE ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Draft amendment allowed. 2. These petitions arise in similar background. They have been heard together and would be disposed of by this common order. We may record facts from Special Civil Application No.22428 of 2017. 3. The petitioners are engaged in the business of importing goods. Since few years now, they have been importing cotton seeds for animal feed and clearing them at various ports in Gujarat. We are concerned with one such import made by the petitioners at Mundra port, for which 8 Bills of Entries were filed in July 2017. The cargo declared was Grain De Cotton (Cotton Seed used for cattle /animal feed consumption) valued at approximately 6.80 crores (rounded off) imported from Benin. These consignments contain cotton seeds weighing 35,34,444 kgs. packed in bags. The petitioners produced copies of certificate issued by the Ministry of Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto India) Order, 2003, no import shall be permitted than those plants /plant products listed in Schedule-V, VI and VII unless the Pest Risk Analysis has been carried out. cotton seeds import is restricted and canalised through Central Institute of Cotton research since it has threat of introduction of exotic pests like Witches broom (Collectoruchum gossyppi var. cephalosporioides), Becterial blight (Xanthomonas campestris pv. Malvacearum (African strain), (Anthonomus grandis other Anthonomus spp.), Seed bruchids (Amblycerus spp. Megacerus spp. Spermophagus spp.) as per detailed Pest Risk Analysis and subsequent notification in Schedule-V of Plant Quarantine (Regulation of import into India) Order, 2003. In view of the above, cotton seeds imported at Mundra Port by M/s.G.G.Herbal Pvt. Ltd. as animal feed is in contravention of import regulations and this is noncompliance of the regulations. Therefore, consignments are liable for deportation or destruction at the cost and risk of the importer as per clause 3(16) of Chapter-II of Plant Quarantine (Regulation of import into India) Order, 2003. 3.1 Pursuant to the said order, a fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be done unless seeds are kibbled or crushed. This would ensure that the seeds cannot be used for sowing. This is precisely why the definition of term animal feed was amended, which amendment was merely clarificatory in nature. He submitted that it is important to protect the plant and animal species in the country against unknown pests and diseases which can spread through imported seeds and the same cannot be allowed without proper regulations and controls. That is why, strict conditions are imposed for import of seeds for sowing under Schedule-V of the PQ Order. 7. It is undisputed that in the past, the present petitioners and several other importers had imported cotton seeds in the seed form, but for animal feed consumption. Such import consignments were cleared by the Customs authorities without insisting on the procedure of certification prescribed under Schedule-V. However, we are prepared to proceed on the basis that the Ministry of Agriculture was not at that time taken into confidence and that therefore, such imports of the past would not act as a precedent against the Ministry. 8. In the present group of cases, the petitioners have i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der:- ( xxviii seeds means seeds intended for sowing or propagating and not for consumption or processing. 10. It may be noted that this Clause-2 of the PQ Order which is a definition clause did not contain definition of term animal feed till amendment under the notification dated 27.12.2017, under which term Animal Feed came to be defined in sub-clause-(xxxv) of Clause-2 as under:- ( xxxv) Animal Feed- Kibbled-crushed seeds/ pellet/ dried cake form thereby denatured and free from weed seeds, bacterial and fungal pathogens. 11. Clause-3 of the PQ Order pertains to permits for import of plants, plant products, etc. Chapter-III of the PQ Order pertains to special conditions of import. Clause-10 contained in the said Chapter pertains to special conditions for import of plant species and reads as under:- 10. Special conditions for import of plant species ( 1) In addition to the general conditions listed above in Chapter-II, the plant species herein after mentioned in Schedule-V, VI and VII shall be permitted to be imported subject to such restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts are permissible on the basis of phytosanitary certificate issue by the exporting country, the inspection conducted by inspecting authority and fumigation, if required, including all other general conditions. This Schedule-VII contains the following Entry No.19:- 19. Animal feeds 13.1 This entry along with insertion of the definition of term Animal Feed by virtue of the notification dated 27.12.2017 was also amended to read as under:- 19. Animal Feed Kibbled-crushed seeds/ pellet/ dried cake form thereby denatured and free from weed seeds, bacterial and fungal pathogens. 14. With this statutory framework in mind, we may refer to the impugned order where the competent authority has detailed his reasons for refusing to clear the imports. We have reproduced the relevant portion of the order. The gist of his objections is that the cotton seeds are only allowed to be imported for sowing in terms of the conditions and restrictions contained in Schedule- V of the PQ Order. Cotton seeds are not allowed to be imported for any other purpose and therefore, cannot be imported even as animal feeds taking res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the prevailing Import Export policy. Whatever doubt one may have would be removed when one refers to the letter dated 31.07.2017 written by respondent No.2. This was in form of correspondence to the Customs authorities queries, in which it was conveyed as under:- Dear Sir, It is formed with reference to attached letter that animal feed mentioned at Sr. No.19 of Schedule-VII of PQ Order 2003 denotes that any grains including cotton seeds cribbled/broken/crushed thereby denatured product and considered as animal feed. As such whole grains or any crop have been considered as animal feed and therefore listed separately in PQ Order, 2003. In view of the above, whole cotton seed is not allowed import into India as animal feed as per the Plant Quarantine Order (Regulation of Import into India), 2003 16. As per this communication made by respondent No.2 himself, any grains including cotton seeds, if are in kibbled /broken /crushed condition, the same would be considered as animal feed and as such, whole grain or any crop would not be considered as animal feed and therefore, listed separately in PQ Order. WE ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation and expert s intervention and reports. However, in the present case, we are neither able to carry out nor would the time permit us to enter into such arena. The clearance of goods would, therefore, have to be on certain conditions, which we propose to impose hereafter. 18. Two conditions to safeguard general interests would be one to ensure that the seeds under import are not capable of being used for sowing and second that even after import, the same are not sold in the seed form and are crushed or kibbled before selling for the ultimate consumption. 19. Under the circumstances, the respondents are directed to clear the goods for import after fulfilling the following conditions and after the petitioners paying all duties and taxes and other charges. This would not preclude the petitioners from raising legal contentions or proceedings to oppose any of the charges, as may be available in law:- I. The respondent No.2 shall have samples of consignments tested through Government or Government recognized Laboratory for the purpose of germination. If it is found that the rate of germination is so low that the seeds are incapable of b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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