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TMI Blog2023 (8) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. These consignments were not being cleared by the customs authorities on the ground that the goods are genetically modified and which if they exceed the permissible parameters cannot be permitted to be cleared and / or they would be required to be re-exported. It is on such premise, that the clearance of the goods being not accepted by the customs authorities, coupled with the fact that the goods were suffering demurrage / storage charges, causing a serious prejudice to the petitioner not only on the rights of the petitioner as a importer but also that on monetary losses being caused to the petitioner, the present petition came to be filed on 17 October, 2022, praying for the following reliefs:- "a) That the provisions of Environment Protection Act, 1986 and the Manufacture, Use, Import, Export and Storage of Hazardous/Micro-Organism/Genetically Engineered Organisms or Cells Rules, 1989 issued thereunder are not applicable in relation to the impugned import of Soyabean; b) That this Hon'ble Court be pleased to declare that the provisions of Food, Safety and Standard Act, 2006 and the Orders issued thereunder shall apply to import of Soyabean in the present case; c) Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly release .for home consumption the Soya bean consignment weighing 17742 MT as detailed in Bill of Entry Nos. 2295860 dt. 03.09.2022; 2296035 dt. 04.09.2022, 2296076 dt. 04.09.2022, 2295993 dt. 04.09.2022, 2296070 dt. 04.09.2022 and subject to such terms and conditions as required in law and as the Hon'ble Court deems fit and proper; i) that this Hon'ble Court be pleased, to issue any order or direction to the Respondents and its officers to refrain from taking any coercive actions against the Petitioners; j) that this Hon'ble Court be pleased, pending the hearing and final disposal of the Petition, issue any order or direction, restraining the Respondents' by themselves, their officers, subordinates, servants and agents from taking any steps or proceedings in pursuance of or in furtherance of the Seizure Memo dated 4" October 2022 and investigation initiated issued by Respondent No. 2 such as but not limited to destruction, sale or auction of the impugned goods; k) for ad-interim reliefs in terms of the prayers (g) - (j) above; l) for costs of this Petition; m) for such further and other reliefs as the nature and circumstances of the case may require." 2. Perusal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent Customs Department of not clearing the consignment of soyabeans imported by the Petitioner from Mozambique. 3. According to the Customs Department as per the Import policy, all imported goods are subjected to domestic laws, acts, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods. 4. The Respondent Customs Department states that the imported soyabeans are genetically modified. According to the Petitioner, though the goods are genetically modified, they are within the permissible limits set out by the Food Safety and Standards Authority of India. The Customs Department contends that the goods have not been cleared by the Genetic Engineering Approval Committee under the Environment Protection Act, 1986 which deals with genetically modified food and genetically modified organism. The clause in the Import policy relied upon by the Customs Department read thus : "6. Genetically Modified Food, Feed, Genetically Modified Organism (GMOs) and Living Modified Organisms (LMOs) Import of Genetically Modified Food, Feed, Genetically Modified Organism (GMOs) and Living Modified Organisms (LMOs) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afety and Standards Authority of India dated 21 August 2020 and the Annexure 1 thereto which refers to soyabean as a permissible import. 6. According to the Petitioner, as per the norms specified by the Food Safety and Standards Authority of India the Petitioner has also obtained the necessary certification from the exporting country, Mozambique, that the consignment is not genetically modified. The Petitioner also contends that the Petitioner cannot be driven to take necessary No Objection from the authority under the Environment Protection Act and it is the Customs Department who should abide by the clearances given under the Food Safety and Standards Authority of India and the Plant Quarantine (Regulation of Imports into India) Order 2003. 7. The Petitioner has sought to contend that the Food Standards Act, 2006 being a later legislation would prevail over the Environment Protection Act, 1986. 8. Considering the larger implications of the issue at hand and that no specific stand of the Genetic Engineering Approval Committee and the Ministry of Environment and Forests and Climate Change (MoEF&CC) in respect of the subject matter is on record, it would be appropriate that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be filed on behalf of Respondent No. 8 - the Committee does not refer to the role of the Genetic Engineering Appraisal Committee, which, according to the Department of Customs, is more relevant; instead, a sweeping generalized stand is taken. Therefore, when the Petition came up on board yesterday, the Deponent of the affidavit was directed to remain present to explain. 4. The Deponent is present. The learned Counsel for Respondent Nos. 1, 8 and 10 submits that this specific paragraph is incorrect and states an additional affidavit would be filed. To a query to the Deponent as to whether he has filed this affidavit on instructions of Respondent No. 8 - the Committee, he has answered in negative. The learned Counsel for Respondent Nos. 1,8 to 10 sought to contend that since the Committee is under the Ministry of Environment, an affidavit and appearance are filed. Though the Genetic Engineering Appraisal Committee may fall under the general superintendence of the Ministry of Environment, it is a distinct entity which a specified specialized role. It is unclear whether the Advocate has the authority to represent Respondent No. 8. We place our strong dis-approval on record for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 1% and that such laboratory does not have a facility of food matrix wise testing. The statement of the learned ASG that it would be appropriate that sample of the consignment is tested from a different Laboratory and on receipt of a report from such laboratory, if it is found that the item as tested is below 1%, then the option of provisional release can be considered also came to be recorded. The contention on behalf of the petitioner that Geo Chem Laboratory is an accredited laboratory, hence there was no reason why the report on record needs to be discarded was also noted by the Court. The Court, accepted the suggestion made by the learned ASG, that the sample which is already drawn pursuant to panchanama dated 17 September, 2022 would be sent to another Laboratory. Thus awaiting the second laboratory's report, the petition was adjourned. The Court accordingly passed the following order:- "1. Heard learned counsel for the parties. 2. This order is in continuation of orders which we have passed from time to time. As we have recorded in the earlier orders dated 20 January 2023 and 19 April 2023, there is a divergence of views between the three statutory bodies which are Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the consignment of Pigeon Peas and representations have been made in that regard. The Port Trust Authority shall respond to this communication within period of one week by way of written order and after the order is received, we permit the Petitioner to amend the petition to incorporate, challenge the same, if the Petitioner is so indulged. 10. The learned Senior Advocate for the Petitioner states that if the order passed by the Port Trust is adverse, liberty may be granted to move to the vacation court. It is for the Petitioner to take the steps and it is for the vacation court to consider the same if it is satisfied of the urgency." 6. Thereafter the proceedings had remained pending for report of such laboratory to be placed on record. When the proceedings were listed before this Court on 19 June, 2023 considering the larger implications and also the peculiar situation which would arise in non-clearance of the imports, on such issues the Court passed a detailed order including reflecting on such issues. The Court opined, that such issues are likely to adversely affect the trade itself. The Court also observed that similar issues on non-clearance of the goods had often rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be any uncertainty on such issues, which would adversely affect the trade and the business interest of the importers, whichever may be the category of goods, requiring a laboratory clearance. Also the policy of the Government is to have effective trade practices. We would, therefore, intend that the Government of India considers forming a centralized agency/laboratory by appointing appropriate research persons in different scientific fields or designate specific laboratories for the different items reaching the ports requiring such tests. Such provision / facility would assist the trade, whereby expeditious laboratory reports can be facilitated, enabling clearance of the goods being imported into the country. Any uncertainty of business on such issues can be avoided and, in fact, effectively handled by such experts agencies. 4. The consignment of the petitioner has got stuck on issues concerning the laboratory clearance. If this was the fate of the goods to be imported, the Petitioner would have certainly had a second thought to import such cargo. It would be not out of place to observe that a bonafide businessman is not interested in litigation, and more particularly, on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9 (FSSAI). The Court also recorded a statement as made in the affidavit of Dr. Krishna Methekar filed on behalf of the FSSAI dated 17 March, 2023 in which the FSSAI stated that the sample was found to be complaint by FSSAI's accredited Laboratory being the subject matter of relevant bills of entry. The Court also recorded the contention as urged on behalf of the FSSAI that there ought not to be an objection for clearance of the said goods from the point of view of FSSAI Standards. The contention as urged on behalf of the petitioner that the FSSAI had granted a certificate to that effect, and therefore, clearance of the said goods ought to be granted, was also recorded by the Court. However, the Court observed that it was desirable that in terms of the observations as made by the Court, a specific approval of the FSSAI and a statement to that effect, needs to be placed on affidavit on behalf of FSSAI-Respondent No. 7. The Court observed that FSSAI needs to file such affidavit as the Customs was also dependent on the FSSAI, which is supposed to be the custodian on food safety and standards and which would be seriously concerned for clearance of such goods/items before they are put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have also perused the laboratory report of the Kochi Laboratory relied on behalf of the Customs. 2. Insofar as the stand taken by the Genetic Engineer Appraisal Committee (GEAC) is concerned, it clearly appears from its Affidavit that such a committee has nowhere come to any final conclusion in regard to the clearance of these goods on the parameters being followed by it under para 6 of ITC (HS), 2017, Schedule 1 - Import Policy, (General Notes regarding Import Policy), as set out in para 5 of its Affidavit. The GEAC is dependent on the test which would be undertaken by the FSSAI. 3. We have perused the Affidavit of Dr. Krishna Methekar filed on behalf of the FSSAI dated 17th March 2023. In para 4(vii), the following statement is made in regard to the Petitioner's consignment of Soybean. "4(vii) It is respectfully submitted that vide order dated 12 th September 2016 wherein the order provides for drawing of one homogeneous sample out of the commingled cargo for multiple importers with same IGM Number, the Cargo of soyabean having BOE No. 2295860 dated 03.09.2022 IGM No. 2320828 was scrutinized, visual inspection conducted and sample was drawn. The sample was found to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment, whereby the department has asked certain questions to the Kochi Laboratory. We may however observe that as submitted by Mr. Nankani, that the clearance of the Soybean is intended for extraction of oil and that if at all as per the certification of the FSSAI, the goods are permitted to be cleared, they would not be released for any agriculture purpose on any other purpose and the same would be used only for extraction of oil. Accepting such statement of Mr. Nankani, we shall hear the parties on the adjourned date of hearing, considering the Affidavit to be filed on behalf of Respondent No. 7-FSSAI. 9. Ms. Shehnaz Bharucha, learned counsel for Respondent Nos. 1, 8 and 10 has placed on record office memorandum dated 5th July 2023, in the context of the present petition. The said office memorandum is taken on record and marked 'X' for identification. Our attention is drawn by Ms. Bharucha to para 4 of the said office memorandum which reads thus:- "4. In this regard, it is to apprise that permission for import of soybean in this matter was given by FSSAI. The FSSAI is established under Food Safety and Standards (FSS) Act, 2006 for laying down science-based standards for artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of which clearance was granted to the imports of the year 202122 and 2022-23. 4. Mr. Vyas, learned ASG for Respondent Nos. 1, 8 and 10, has also stated that, on the backdrop of today's discussion, he would take appropriate instructions, so that further orders can be passed after hearing the parties. 5. Mr. Bhalwal, learned Counsel for Respondent No. 4, intends to file rejoinder affidavit. The same be filed in the office with proper pagination and served on all the parties. 6. We are also of the opinion that the affidavit dated 24th July 2023, filed on behalf of the FSSAI, in pursuance of our order dated 18th July 2023, is not satisfactory. The said affidavit ought to have been in terms of our observations made in paragraph 3 of said order dated 18th July 2023. Learned Counsel for the FSSAI has stated that he shall place on record an additional affidavit as expected in terms of our observations as contained in the said order. Let such affidavit be placed on record and served on all the parties." 7. We adjourn the proceedings to 9th August 2023. "High on Board"." 9. Accordingly on 09 August, 2023, the Court had set down the proceedings for hearing. Mr. Vyas, learned ASG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier occasion, we had adjourned the present proceedings for today to enable the FSSAI to place on record a short clarificatory affidavit for the reason that although our order dated 18 July 2023 was crystal clear, an affidavit in terms of our observations in paragraph (4) of the said order, was not placed on record. Thus, in our opinion, though it was to be only one paragraph affidavit, however, even to place on record such an affidavit, such a long time has been taken and that too on the backdrop of series of earlier orders passed. In these circumstances, we although quite unwillingly grant one more day's time to FSSAI to place on record such affidavit by adjourning the proceedings for tomorrow. If such affidavit is not fled by the FSSAI, we shall be constrained to pass further appropriate orders and there shall be no other alternative. 2. Stand over to 10th August 2023 at 10.30 a.m. "High on Board". 12. Today in compliance of our orders passed yesterday (09 August, 2023), affidavit of Mr. Sukant Chaudhary, Deputy Director, Food Safety and Standards Authority of India is placed on record. In the context of our order dated 18 July, 2023, in paragraph 4 such affidavit st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Needless to observe that the bank guarantee shall be furnished before clearance and it shall be subject to the further actions, if any, which shall be taken by the Customs Department. Mr. Mishra, learned counsel for the Customs Department, would submit that an endeavour shall be made to complete the investigation as expeditiously as possible and within a period of one month from today. v. We keep open all contentions of the parties on any further proceedings including on issues of investigation, and the stand of the Department on any such issue. vi. As we have noted, that as the goods were lying at the Mumbai Port, the Port Authority was impleaded as a party (respondent No. 4 to the present proceedings). We have also recorded that the customs have cleared the Pigeon Peas, after the petitioner paying the demmurrage / storage charges as being to be charged by the Port Authority. It appears from the submission as made by Mr. Setalwad, learned senior counsel along with Mr. Bhalwal, for the Mumbai Port Authority, that the petitioner is liable to pay the Port Authority the demurrage / storage charges, on the goods as leviable under the rules. It appears that there are disputes in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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