Home Case Index All Cases Customs Customs + HC Customs - 2023 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 1057 - HC - CustomsProvisional release of the goods under Section 110A of the Act of 1962 - goods declined to be released on the ground that the said goods did not contain starch or other additives and did not fall under CTH2106 - CESTAT allowed the provisional release - contradictory nature of test reports received from CRCL, Mumbai and Anacon Laboratory - HELD THAT:- The report dated 16-11-2022 received from CRCL, Mumbai indicated presence of some insect infestation in all the samples. On this basis, the Superintendent of Customs on 30-11-2022 proceeded to observe that there was a mismatch between the test memo submitted and the test report obtained. Anacon Laboratory in its report dated 16-11-2022 found the samples fit for human consumption as per FSSAI specifications. It is clear that despite receiving the test reports for the queries that were made to CRCL, Mumbai and Anacon Laboratory, the Superintendent by his communication dated 30-11-2022 further sought a test to be undertaken by CRCL, Mumbai as to whether the sample was fit for human consumption or not. When this test was not sought at an earlier point of time vide communication dated 14-11-2022 and the report of Anacon Laboratory, a FSSAI accredited Laboratory being clear that the sample was fit for human consumption, there does not appear to be any basis for the Superintendent on 30-11-2022 to again make a request for confirming whether the sample was fit for human consumption or not. In this regard, if Regulation 9 of the Regulation of 2017 is perused, it becomes clear that two parts of the food sample are required to be first taken. The Authorised Officer is required to forward one part of the sealed and labelled article to the Food Analyst at a notified Laboratory under the Regulation of 2011. If the sample is found to be safe, the remaining sample is required to be returned to the importer. If the sample is found to be unsafe, on the request received from the food importer, the second sample can be forwarded to the Referral Laboratory for analysis. It thus indicates that only if the sample sent to the Food Analyst is found to be unsafe that such second sample be referred to the Referral Laboratory. The communication dated 30-11-2022 issued by the Superintendent therefore does not appear to be in consonance with Regulation 9 of the Regulation of 2017. The appellant has relied upon Notification dated 9-10-2019 issued by FSSAI which refers to notifying various Customs officials as Authorised Officers under Section 25 read with Section 47(5) of the Act of 2006 for food import clearance. In accordance therewith, Instruction No. 1 of 2020 issued by the dated 12-2-2020 require the Custom Official notified as Authorised Officer to ensure that the FSSAI accredited Laboratories are being utilized for analysis of samples of imported food items. The communication dated 14-12-2020 issued by the Superintendent thus indicates that the reports submitted by CRCL, Mumbai and Anacon Laboratory, Nagpur were not contradictory in nature considering the tests directed to be carried out. The decision in DINESHCHANDRA JAMNADAS GANDHI VERSUS STATE OF GUJARAT [1989 (1) TMI 222 - SUPREME COURT] refers to challenge to the order of conviction under the provisions of the Food Adulteration Act, 1954 and holds that offence of food adulteration is a socio-economic offence. It is not found that the appeal gives rise to any substantial question of law for consideration. The order passed by the CESTAT on 10-5-2023 does not call for any interference. The Customs Appeal is dismissed.
|