2017 (9) TMI 1456 - HC - Customs

Confiscation - Sweet Whey Powder - it was alleged that the goods are not conforming to the provisions of the Food Safety and Standards Act, 2006 Rules and Regulations made thereunder - This Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot examine the validity of test report when there are no other malafides alleged against the officers who have done the testing. Thus, merely because the third respondent has reported the presence of heavy metal-Aluminium in the samples, that by itself cannot vitiate the report by stating that he ought not to have examined the metal content in the samples as the general parameters do not provide for the same - this Court is not inclined to entertain the writ petition and the same is dismissed as not maintainable.

Summary

Issues:
Impugned order by Additional Commissioner of Customs regarding Sweet Whey Powder not conforming to Food Safety and Standards Act, 2006 rules and regulations.

Analysis:
The petitioner challenged the order-in-original dated 08.06.2017 by the Additional Commissioner of Customs, which confiscated the Sweet Whey Powder under Section 111(d) of the Customs Act, 1962, and imposed a penalty of ?2,00,000 under Section 112(a) of the Customs Act, 1962. The petitioner argued that the lab reports from two different labs showed contradictory opinions and wide variations in test results, leading to non-compliance conclusions. The petitioner requested the officials who conducted the tests to be available for cross-examination. However, the court found no allegations of malafides against the testing officer and ruled that the officer's presence for cross-examination was unnecessary as the officer acted in an official capacity. Additionally, the officer was not a party respondent in the petition, leading to the rejection of the petitioner's plea.

In a similar case, the court highlighted that without allegations of malafides against testing officers, the validity of the test reports cannot be questioned under Article 226 of the Constitution of India. The court emphasized that challenging technical reports requires establishing factual discrepancies, which cannot be done through a writ petition. Therefore, the court dismissed the writ petition as not maintainable but granted the petitioner the liberty to appeal the decision. The appellate authority was instructed to exclude the period from 01.08.2017 till the receipt of the order's certified copy when calculating the limitation for the appeal. The court clarified that its observations were solely for determining the writ petition's maintainability and would not influence any future appeal proceedings.