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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 ..... ia, which is "SNI 2323:2008 for Grade: I-B". SNI is the Indonesian National standards for products, which are manufactured or imported into Indonesia. On import the Department issued an examination order directing to produce clearance under FSS Act or Regulations, or a no objection certificate (NOC) from the Authorized officer, FSSAI, Cochin. 3. The Authorized Officer subjected the Cocoa Beans to test under Clause 2.2 of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 and a further test was conducted under the category of 'Dry Fruits and Nuts' under Clause 2.3.47.5 of the Food Safety and Standards (Food Product Standards and Food Additives) Regulations 2011. The Test Report was issued that the 'cocoa bean' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling of all the products covered under the 4(four) Bills of entry on the ground that the samples do not conform to the requirements laid down in IS 8865:2003. Show Cause Notices were issued under Section 124 of the Customs Act, 1962 by the Customs for the impugned imports. On adjudication, the Adjudicating Authority passed the impugned order dated 08.07.2015, confirmed the allegations made in both the Show Cause Notices and ordered confiscation of imported 'Cocoa Beans' and imposed redemption fine of Rs. 15,00,000/- and penalty of Rs. 5,00,000/- on the following grounds. i) The High Court, while accepting the contention that no standard has been prescribed for Cocoa Beans under the FSS Act, also upheld the authority of the Authorized Officer to ensure that the goods were not unsafe/substandard. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no standards existing for 'Cocoa Beans' in the FSS Act or the Rules framed thereunder; in this regard, the law has very clearly laid down that "Lex Non Cogit Ad Impossibila" or that the law does not compel a man to do that which is impossible as held in State of Rajasthan Vs. Shamsher Singh, 1985 AIR 1082 and in M/s. Raj Traders Vs. CC, Mumbai, 2023 (1) TMI 395-CESTAT MUMBAI. (see); the Cocoa Beans were in conformity with BIS standards at the time of import and hence there is no violation of any provision of law; confiscation under Section 111 (d) of the Customs Act is only applicable, if the importer has violated any prohibition at the time of importation', this has been made clear by the Hon'ble Supreme Court in the case of Union of India Vs. Sampat Raj Dugar, 1992 (58) E.L.T. 163 (S.C.); in the said case, the Hon'ble Apex Court held that where 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue to the Hon'ble Gujarat High Court, which was dismissed reported as, CC Preventive Vs. Adani Exports Ltd., 2013 (295) E.L.T. 678 (Guj.); Reliance is also placed on the following decisions; (a) Saurashtra Chemicals Vs. CC, Jamnagar, 2023 (8) TMI 1101- CESTAT (b) Sandur Manganese Vs. CC, Goa, 2014 (310) E.L.T. 412 (Tri. - Mumbai) (c) JSW Steel Lid., Vs. CCE 2015 (10) TMI-189-CESTAT (d) Uttam Galva Metallics Ltd. Vs. CCE-2019(4) TMI 1703- CESTAT 11. The learned counsel further submitted that; though the EIA test reports were conducted on the specific directions of the High Court of Kerala in their order dated 04 February 2015, there is no denying the fact that the impugned goods fully met the BIS standards prescribed under IS8865:2003 even at the time of import. The deterioration in quality was directly due to the delay of 11 months in testing the impugned goods and the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to Bureau of Indian Standards (BIS). BIS has tested the samples of the impugned goods and the Analysis Report shows that, "the sample cocoa beans does not conform the requirement as laid down in "IS 8865:2003 for the above listed parameters". The appellant contended that the goods were tested by 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. I find 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, I find 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 see ..... X X X X Extracts X X X X X X X X Extracts X X X X
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