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TMI Blog2024 (12) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... BIS after a lapse of 11(eleven) months, therefore the goods being agriculture produce would certainly deteriorate with passage of time, therefore the test results after 11(eleven) months would be different, if they are tested immediately after import. In this case the imports were made in the month of May 2014 and September 2014, therefore the contention of the appellant in that the goods where tested after 11(eleven) is not correct, since 2(two) consignments have come in the month of September 2014. Further, it is found that on import and on examination and testing by FASSI they have found that the goods are not as per the approved standards. The appellant has also contended that they obtained the import permit for import of the impugned goods as per the requirement of Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989, Cocoa Beans being agricultural seed must be imported with a valid permit under the Regulation 3 (1), since they have the import permit from the concerned authority their import is valid and there is no violation of the import policy. The appellant contended that according to foreign supplier's test report, the cocoa beans have fully complie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; does not satisfy the specification of the approved standards. Contending that no standard has been fixed under FSS Act or Regulations for the 'cocoa beans', the only standard available is under BIS, the test report was challenged by the Appellant in Writ Petition No. 22987/2014 before the Hon'ble High Court of Kerala. In the said writ petition, the Learned Single Judge of the Hon'ble High Court passed the judgment on 03.09.2014 by issuing the following directions: i) The imported goods shall be released to the petitioner forthwith ii) In the absence of standards, I am of the view, the sample shall be sent to analysis by the Bureau of Indian Standards. iii) The petitioner shall not use the Cocoa Bean released to him for human consumption without report obtained as indicated above. iv) The petitioner shall pay such cost as may be required for the purpose of analysis 4. The appellant imported 2(two) more consignments and for clearance filed 2(two) Bills of Entry dated 11.09.2014. They also filed a Writ Petition before the Hon ble High Court of Kerala in respect of imports dated 11.09.2014. The Hon ble High court disposed the matter in the light of judgment in Writ Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstandard. ii) There is no allegation in both the SCNs that the Cocoa Beans did not conform to the standards of the FSS Act. It only states that clearance from Authorized officer is mandatory. Accordingly, the contention that SCN would not sustain as no standards have been fixed by the FSS Act is accordingly, rejected. iii) The fact that the Authorized Officer had not taken cognizance of the Foreign Supplier's test report and accepted the contents thereof indicate that the said report did not meet with the approval of the said Authority. The Hon'ble High Court of Kerala also had not directed to consider the said reports. iv) Quality parameters of goods imported have to be determined after their arrival in India and closer to the time of their removal to the DTA and not at the point of purchase in the country of export. v) Imported Cocoa Beans can be confiscated under the Customs Act and it would not amount to contravention of the provisions of the FSS Act so long as the option is given to return them to the Appellant on levy of fine under Section 125 of the Customs Act. vi.) The re-export can be done only on payment of redemption fine. 7. Accordingly, the goods imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the import license was cancelled only subsequent to the import, confiscation under Section 111 (d) will not apply. 10. The learned counsel further submitted that; according to The Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989, Cocoa Beans being agricultural seed must be imported with a valid permit under, Regulation 3 (1); Reliance is to be placed on the Foreign Supplier's Test Report and not the EIA Test Reports; the Authorised Officer had issued the Recall Notice dated 24.04.2015 on the ground that the impugned goods failed to conform to the BIS standards under IS 8865:2003 and therefore the impugned goods were deemed to be sub-standard or unsafe; it is therefore the case of Customs that the impugned goods did not meet the requirements of Section 25 of FSS Act, 2006; the Foreign Supplier's Test Reports submitted by the Appellants at the time of import covered all the parameters covered by the EIA Test report and the test results for all the parameters were well within the prescribed limits even considering the BIS standards IS 8865:2003 applied by FSSAI; the Cocoa Beans were imported on 21.05.2014 and 11.09.2014, prior to the import, the sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsibility for the delay should be of the Authorized Officer; as the impugned goods were fully compliant with the BIS standards at the time of import the impugned goods were not tainted with any prohibition at the time of import and therefore there is no case for confiscation under Section 111(d) of the Customs Act. reliance in this regard is placed on: (a) Baby Marine Seafood Vs. CC Cochin, 2021 (377) E.LT. 872 (Tri-Bang). (b) Jhunjhunwała Vanaspati Vs. CC Kolkata, 2019 (369) E.L.T. 776 (Tri. - Kolkata) (c) Health Caps India Ltd., Vs. Commissioner, 2018 (364) . . . 815 (Tri. - All.) 12. The learned counsel submitted that; the impugned Order has imposed penalty only under Section 112 (a) of the Customs Act; penalty under Section 112(a) is leviable on a person only if he does or omits to do any act that would render the goods liable for confiscation under Section 111 ibid; as already submitted supra the goods are not liable for confiscation and hence the question of imposition of penalty under Section 112(a) of the Act does not arise; this was held in M/s. Tasty Nut Industries Vs. CC Cochin, 2024-TIOL-597CESTAT-BANG. 13. Heard both sides and perused the records. 14. I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has also contended that they obtained the import permit for import of the impugned goods as per the requirement of Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989, Cocoa Beans being agricultural seed must be imported with a valid permit under the Regulation 3 (1), since they have the import permit from the concerned authority their import is valid and there is no violation of the import policy. I find that the first report of FSSAI, on import, even though it was with respect to the Standards of 'Fruits and Nuts' there are some common parameters for agriculture produce and food items, therefore even, if the test it was not exactly for the standards of 'cocoa beans', the report has a relevance. Further, I find that the appellant has contended that goods confiscated after clearance for home consumption is not tenable. I find that in this case goods have been released by Customs as per the directions of the Hon'ble High Court. The appellant contended that according to foreign supplier's test report, the cocoa beans have fully complied with BIS standards prescribed under IS 8865:2003. On recall of the goods by the Authorised Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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