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TMI Blog2023 (5) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to enforce. The distinction between enforcing the law and enforcing compliance with the law is not so subtle as not to appeal to reasonableness. The entire regime for filtration of articles of food, including testing by FSSAI-credited laboratories and reference to FSSAI before clearance thereof, on import is founded upon this distinction in authority to invoke the framework of such legislation and, more especially, involving specialized knowledge. Customs authorities are bound by the sanction and approval accorded, under the aegis of Food Safety and Standards Act, 2006, by the designated authority therein as the sole determinant for invoking section 111 of Customs Act, 1962 insofar as articles of food are concerned. An independent ascertainment of fitness for human consumption, without reference to the statutory authority envisaged for the enforcement of Food Safety and Standards Act, 2006, is not in public interest and invocation of public health, no matter how convenient it may be for retention of goods, is no substitute for legal jurisdiction. The prohibition in the notification cited in the impugned order cannot be made applicable to the impugned goods except b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . VIII(Cus)25-67/SIIB/AC/2022] of Commissioner of Customs, Nagpur rejecting their request for provisional release of seized goods under section 110A of Customs Act, 1962, it is not the submission of Learned Authorised Representative that the Tribunal does not have jurisdiction to sit in judgement over a decision of the competent authority insofar as 'provisional release' is concerned. That, it appears, is no longer a sore point with customs authorities and, not surprisingly, in the light of the decisions that have been handed down ever since the insertion in Customs Act, 1962, with effect from 13th July 2006 in accordance with Taxation Laws (Amendment), Act, 2006, generated controversies over its implementation. Some of these decisions, and including those after the impugned provision had been amended by Finance Act, 2011 to substitute adjudicating authority' therein for Commissioner of Customs with effect from 8th April 2011, claimed initially as legislative intent to disconnect the exercise of that authority from jurisdictional oversight of the appellate hierarchy, recited in order [final order no. A/85594-85595/2022 dated 23rd June 2022] of the Tribunal, arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dispute of the same appellant on the same goods over order [order no. VIII (Cus)25-169/SIIB/Betelnut Borkhedi/2021 dated 30th December 2021] of the Principal Commissioner of Customs, Nagpur refusing to allow provisional release, took note of absence of any inclination to re-classify the goods in much the same way as the goods impugned here. 3. This time, the respondent-Commissioner has arrogated responsibility for public health and safety of persons who, unsuspectingly, may be made to ingest 'betel nuts' unfit for human consumption should the goods ever be allowed to be cleared from customs charge and that is the justification held out before us by Learned Authorised Representative for the impugned order; impliedly, we would be doing disservice to public interest should we not concur with that outcome. We, too, are conscious of our obligations to ensure these grand purposes are achieved through the instruments designed in legislation, leaving us with no option but to approach the present dispute in terms of the authority vested in Commissioner of Customs to direct, and in accordance with section 110A of Customs Act, 1962, withholding of access by owner to the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seeming futility of this protracted correspondence, the appellant approached the Hon ble High Court of Bombay in writ proceedings that culminated in order dated 22nd December 2022 directing the petition to be treated as an application under section 110A of Customs Act, 1962 for disposal by the respondent-Commissioner. Thereupon, by letter dated 30th December 2022, the appellant herein was given an opportunity for presenting their case before the Commissioner of Customs, Nagpur and also placing them on notice that the remnant samples sent to the Central Revenue Control Laboratory, New Delhi, the referral lab designated by Central Board of Indirect Taxes Customs (CBIC) in circular no 46/2020-Cus dated 15th October 2020, had elicited report dated 21st December 2022 concluding that the moisture content, absence of starch and damage to nuts by mould and insects had rendered the goods under seizure to be unfit for human consumption and potentially hazardous to public health and public interest. 6. By the impugned order, Commissioner of Customs, Nagpur, taking note of the prohibition in section 25 of Food Safety and Standards Act, 2006 as applying to the goods reported upon by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of charge under section 47 of Customs Act, 1962 are yet to apply their quasi-judicial authority insofar as the impugned goods are concerned which, itself, may not be overly alarming as empowerment, under section 5 of Customs Act, 1962, could be invoked for the Commissioner to function as proper officer for these purposes. Notwithstanding the legality thereof, the subsequent discharge of these powers, consequent upon show cause notice for visiting any detriment, cannot but be influenced by the decision not to allow provisional release envisaged in section 110A of Customs Act, 1962. More so, as such withholding is premised on legal ineligibility from some purported prohibition in other law in force and not attributed to pendency owing to investigation into valuation or classification. On the presumption that enactment of law proceeds from validly conferred authority and bears no inconsistency with existing legislation, unless deliberately intended so to create exception, the intent of inserting section 110A of Customs Act, 1962 could not have been designed to empower Commissioner of Customs to determine prohibition definitively enough at this stage of tentatively reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Learned Authorized Representative, the laboratory at New Delhi is also notified by the FSSAI and the resolution of the diverging views, emanating from the tests conducted by the customs laboratory at Mumbai as well as M/s Anacon Laboratories Pvt Ltd, by the report relied upon in the impugned order is entirely proper and valid. He submitted that the two prohibitions that prompted the refusal to grant provisional release should guide the Tribunal and that the report of the customs laboratory at Delhi, binding on the department, may be overlooked only to the detriment of public health. This, in our view, is irresponsible argument; while seeking approbation of the report of the Delhi laboratory by touting as FSSAI-approved, the lack of validity of tests undertaken by the Mumbai laboratory is impliedly admitted and, yet, the divergence of that test with that of another FSSAI-approved laboratory is touted as justification for reference to the Delhi laboratory which, from the communication of 5th December 2022, appears to be for appellate recourse. Oddly, customs authorities resorted to this remedy reserved for those who have a stake in a final outcome though stake of customs author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, special enactments that prohibit those subject to it from breaching obligations domestically also extending those obligations in cross-border transactions do not, except by specific conferment, enable jurisdiction of customs authorities to take recourse thereto. The recourse to 25. All imports of articles of food to be subject to this Act. (1) No person shall import into India (i) any unsafe or misbranded or sub-standard food or food containing extraneous matter; (ii) any article of food for the import of which a licence is required under any Act or rules or regulations, except in accordance with the conditions of the licence; and (iii) any article of food in contravention of any other provision of this Act or of any rule or regulation made thereunder or any other Act. . of Food Safety and Standards Act, 2006 which, in relation to food, places restrictions on persons does not bring them under the jurisdiction of customs officers except on a finding by the designated officer that the said provision has been breached in the course of imports. The consequence of breach of the said obligation under the said statute, which does not empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of things, may be addictive. The integration of the Harmonised System of Nomenclature (HSN) for enforcement of fiscal and trade policies at the point of import has been in place for too long a time to accord benefit of doubt to the respondent-Commissioner as proceeding from lack of familiarity in seeking to transpose classification-determined consequence without touching upon misdeclaration of material particular, enunciated in section 111 (m) of Customs Act, 1962, as prompting seizure or pending for investigation to foreclose provisional release under section 110A of Customs Act, 1962. Even if that were so, the decision [final order no. A/85472/2022 dated 11th May 2022 in customs appeal no. 85127 of 2022] of the Tribunal in the dispute of this very appellant, viz., Excellent Betelnut Products Private Ltd v. Principal Commissioner of Customs holding that 20. This is a classification dispute and, being a classification dispute, denial of provisional release would be disproportionate determinant. The appellant is a regular importer and differential duty, if any, arising upon conclusion of proceedings should be recoverable without difficulty. Breach of policy prohibiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suggest that declining to release direct or effective is at the cost of the public except of goods whose import is prohibited and destined to be destroyed in public interest. The law does not intend that State is enriched by fines arising from breach of the law or by substituting for the importer to trade in goods, whether seized or even confiscated. Section 110A is couched in such plain language as to give no room for controversy in interpretation or speculation of legislative intent; indeed, it does not even offer scope for discriminatory treatment among imported goods. 16. A harmonious construction of chapter XIII and chapter XIV of Customs Act, 1962 can lead to no other conclusion than to infer the intent of the amendment as not for provisioning but to substitute whimsicality with uniformity. Approval of withholding of provisional release except in circumstances of justification that it is not mere reasonable belief that has prompted so but that there are reasons to believe that goods are prohibited would only weaponize whimsicality that the enactment intended to eliminate. 17. In these circumstances, the past offers no expectation that the respondent-Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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