TMI Blog2011 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... n was taken up for final hearing and is finally disposed of by this judgment. By this petition, the petitioner, a Public Limited Company, seeks the following substantive relief: [10] Under the circumstances, petitioners most respectfully pray that: [A] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction, quashing Detention Memo No.1/2010-11 dated 19.9.2010 (Annexure-G) and Seizure Memo dated 29.9.2010 (Annexure-H); [A-1] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents, their servants and agents for release of the goods in question for reprocessing the same on such terms and conditions as this Hon'ble Court deems fit and proper and after reprocessing the same, be permitted to clear the goods for home consumption after carrying out legal requirements, inclusive of test. [B] Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondents No.2 to 5 to decide representations for provisional release of goods imported vide B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FA standards, the cargo must be released for human consumption. Thereafter, there is a reference to the contents of the petitioner's letter dated 14.9.2010 after which it is stated thus: It is therefore requested to ensure that the following step at your end: [i] To ensure that cargo released from Kandla is reached at the declared plant having relevant Central Excise Jurisdiction thereon, cargo must be stored separately. [ii] To draw the sample of the refined cargo and send to Director, CFL, Vadodara for testing purpose, intimating this office. [iii] On receipt of the report from CFL, Vadodara, confirming the standards laid down in Prevention of the Food Adulteration Rules, 1955, the cargo may be released by Central Excise Authorities. [iv] Report may be sent to this office. In the footnote to the said letter, the petitioner company was directed to follow the instructions and release the cargo only after confirmation from Central Excise Authorities/customs, and that final assessment only could be done after conformation with the PFA standards. Out of the entire cargo imported, the petitioner company lifted 135.950 MT for refining the same at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner has moved the present petition seeking the relief noted hereinabove. In response to the petition, an affidavit in-reply has been filed on behalf of the respondent No.5 Additional Director, Directorate of Revenue Intelligence, Gandhidham, controverting the averments made in the petition. It is stated that on detailed inquiry, investigation and re-testing of the samples taken by the DRI, it is revealed that the goods under seizure are Refined Cottonseed Oil of Non-Edible Grade . It is stated that a show cause notice dated 14.12.2010 has been issued to the petitioner pursuant to the seizure and inquiry. That the Port Health Officer, Kandla had drawn four representative samples from four different compartment vessels and sent the same to the Food Drugs Laboratory, Vadodara, which had issued four test reports, stating that the samples do not conform to the standards and provisions laid down under the PFA Rules for Cottonseed Oil on account of iodine values being more than the prescribed limit and very low acid value in comparison to other cottonseed oil. Thereafter, counter part samples were sent to the Central Food Laboratory, Pune, and the result of the analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood products, which fail the PHO testing. Therefore, the Department could not accede to the various representations made by the petitioner for grant of provisional release of the goods in question. Mr. K. B. Trivedi, Senior Advocate, learned counsel for the petitioner invited attention to the various reports which have been received by the concerned authorities in relation to the samples taken by them, to submit that there are wide variations in the different reports. Whereas, the initial inquiry reports state that the goods are refined Cottonseed Oil (Edible Grade) which conform to the PFA standards, subsequent reports of the Central Food Laboratory, Pune, indicate that the goods in question do not meet with the PFA standards. It was submitted that in the show cause notice, the respondents have come out with a new case that the goods are Refined Cottonseed Oil of Non-Edible Grade, whereas none of the reports in question indicate that the goods in question are of Non-Edible Grade. Inviting attention to the unreported decision of this Court in the case of M/s Teej Impex Pvt. Ltd., through Shri Vijay Joshi, Commissioner of Customs and others, rendered on 4.12.2006 in Special Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms. Referring to the contents of the said Circular, it was submitted that in the present case, the food articles in question having been imported in the country and not found to be conforming to the prescribed standards, the customs authority suo motu would not be in a position to release the food articles for re-processing. In the light of the Circular No.58/2001-Cus. Dated 25.10.2001, all the consignments of edible/food products, which fail on PHO testing, are required to be re-exported or destroyed. Hence, only consignments of edible/food products which conform to the provisions of Prevention of Food Adulteration Act, 1954 and the Rules made thereunder are allowed to be imported into India and the consignments which do not conform to the provisions of the PFA Act and the PFA Rules are required to be dealt with in the manner prescribed in Circular No.58/2001-Cus. Dated 25.10.2001 and as such, the goods in question are required to be re-exported or destroyed. Dealing with the last contention, Mr. K.B. Trivedi, learned counsel placed reliance upon a decision of the Bombay High Court in the case of Commissioner of Customs (Import), Raigad v. Amrit Banaspati Co. Ltd. , 2007 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same did not conform to the PFA Rules, upon considering the perishable nature of the goods as well as the fact that the confiscated goods which were worth crores of rupees, could be destroyed, and nobody would be benefited by it, took support of the above referred Circular No.28/2006 and permitted reprocessing of the goods subject to certain conditions. The Court took care to ensure that firstly there was an expert opinion to the effect that after reprocessing the vanaspati ghee would be fit for human consumption conforming to the standards laid down in the PFA Rules. In the aforesaid backdrop, examining the facts of the present case, a perusal of the various reports given by the different laboratories indicates that there are wide variations in the reports received from different laboratories. The Chemical Examiner, Customs Laboratory, Kandla, gave his test report dated 12.08.2010 stating that the goods in question were cotton seed oil having acid value = 0.04 and Iodine value =108.8. The report dated 12.08.2010 of the Gujarat Laboratory is to the effect that the sample conforms with prescribed quality in respect of PFA Rules. The test reports of the Food Drugs Laboratory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady in the mandatory limit of refined cottonseed oil of edible grade as per PFA Act, 1954. Therefore, this product does not require further refining/ treatment in order to fulfill any further mandatory requirement of PFA quantitatively. The certificate of analysis dated 24.10.2010 of the Director, Central Food Laboratory, indicates that the sample shows iodine value more than 112.0, Bellier test less than 190 degree centigrade and hence, does not conform to the standards of cottonseed oil as per PFA Rules as per tests performed. (The iodine value indicated in the said report is 114.78). As noted hereinabove, the certificate of analysis issued by the Director, Central Food Laboratory, Pune, indicates that Iodine value is more than 112.0 and that Bellier test is less than the prescribed standard. However, from the said report it is not clear as to whether the goods in question are of non-edible grade, as is sought to be contended on behalf of the respondents, or as to whether the goods can be made fit for human consumption upon reprocessing. In support of the contention that the goods in question are of non-edible grade, the learned Senior Standing Counsel for the respondents has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples are sent for testing to the Central Food Laboratory, Mysore, as specified under Table-I of Rule 3 of the PFA Rules. In the aforesaid facts and circumstances of the case, the petition is disposed of in the following terms: The respondents-authorities are directed as under: To send samples of the subject goods seized to the Central Food Laboratory, Mysore for testing for opinion as to whether, after re-processing, the goods in question will be fit for human consumption conforming to the standards of cottonseed oil prescribed in the Prevention of Food Adulteration Rules, 1955. This shall be done within one week from the date of receipt of this order. The Laboratory shall submit report within one week on receipt of the sample. On receipt of the report, if the report is in the affirmative, i.e., the Laboratory finds that, after re-processing, the goods will be fit for human consumption conforming to the standards of cottonseed oil prescribed in the Prevention of Food Adulteration Rules, 1955, then the petitioner shall be permitted to reprocess the goods within one week from the date of receipt of the report. After reprocessing of the goods, the respondents shall send samp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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