New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (8) TMI 291 - BOMBAY HIGH COURT

2015 (8) TMI 291 - BOMBAY HIGH COURT - 2016 (332) E.L.T. 52 (Bom.) - Import of wine products - Refusal of NOC Product Containing Tartaric Acid and Ascorbic Acid prohibited product or not - Whether Tartaric Acid and Ascorbic Acid were food additives that were permitted to be added to alcoholic wines under FSSR, 2011 Held that:- main objective of Bill was to bring single statute regime relating to food and to provide for systematic and scientific development of Food Processing Industries S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

wines are item (x) of Regulation 3.1.1(4), therefore food additives to be added to alcoholic wines As per Regulation 3.1.12, Tartaric Acid finds specific mention and can be added as acidulant provided maximum level of use was 600 ppm Thus Tartaric and Ascorbic Acid was permitted food additive which can be added to alcoholic wines Petition allowed Decided in favour of Petitioner. - Writ Petition (L) No. 1712 of 2015 - Dated:- 28-7-2015 - V. M. Kanade And B. P. Colabawalla,JJ. For the Pet .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Private Limited Company and is an ultimate subsidiary of Pernod Ricard S.A. of France, the world's co-leader in wines and spirits. 3. The Petitioner, by way of the present Petition, seeks an issuance of an appropriate writ for release of its wine products by the brand name of Jacob's Creek, and more particularly described in Exh. 'E' to the Petition. These wine products are currently withheld by the Port Authorities - Respondent No.3 (Commissioner of Customs, Nhava Sheva Port, M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ards (Food Products Standards and Food Additives) Regulations, 2011 (hereinafter referred to as the "FSSR, 2011"). It is the case of the Petitioner that Tartaric Acid as well as Ascorbic Acid are ingredients that are permitted under the FSSR, 2011 and it is in these circumstances that the Petitioner has prayed that a writ of mandamus be issued directing Respondent No.2 to issue the NOC with respect to the imported consignments of wine as detailed in Exh. 'E' to the Petition and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and the formulation of the said wines has not changed ever since its first import. Up until October 2014, the Petitioner was given the NOC for import of this wine. 5. In the months of October to December 2014, the Petitioner imported in all 38 consignments of Jacob's Creek brand of wines valued at approximately ₹ 2.5 crores. The NOC for these consignments was refused by Respondent No.2 on the ground that the wines imported contain non-permitted ingredient Tartaric Acid (INS334). On thi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent No.2 has totally misinterpreted the Regulations to contend that Tartaric Acid is not an ingredient permitted under the said Act or the FSSR, 2011 framed thereunder. In this regard, he invited our attention to section 3(1)(k) of the said Act which defines the words 'Food Additive'. He submitted that 'food additive' means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional ad .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ipulates that no article of food shall contain any food additive or processing aid unless it is in accordance with the provisions of the Act and the FSSR, 2011 framed thereunder. 7. Mr. Chagla thereafter invited our attention to the FSSR, 2011 which have been framed in exercise of the powers conferred under section 92(2)(e) read with section 16 of the said Act. More particularly, Mr Chagla drew our attention to Regulation 3.1.1 which deals with the use of food additives and stipulates that food .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sed as a food additive. He drew our attention to Regulation 3.1.1(4) which provides for the use of food additives in different foods and stipulates that the food products mentioned therein may contain food additives permitted in the FSSR, 2011 and in Table 3 of Appendix 'A'. At item (x) of Regulation 3.1.1(4), alcoholic wines is one of the food products which is permitted to contain food additives. He thereafter also drew our attention to Regulation 3.1.12 which deals with Sequestering a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

00 parts per million (ppm). He also drew our attention to the Note below the Table which specifically states that Tartaric Acid shall not be added to any food meant for children below 12 months. In view of this, Mr Chagla submitted that any food which was not to be consumed by children below 12 months, could contain Tartaric Acid as a food additive. He submitted that in the present case, Tartaric Acid is added to wine as a buffering agent to counter acidic and alkaline changes during storage or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in wines, was the submission of Mr Chagla. In these circumstances he submitted that the NOC has been refused to the Petitioner on a totally erroneous basis and the same needs to be corrected by this Court by issuing appropriate writs to Respondent Nos.2 and 3. 8. On the other hand, Mr Pracha, learned counsel appearing for Respondent No.2, submitted that Respondent No.2 has been established under the Food Safety and Standards Act, 2006 with a mandate to lay down science based standards for articl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aid objective, Respondent No.2 has been obligated with various mandatory duties and functions under different provisions of the Act. Mr Pracha submitted that the rejection letters issued by Respondent No.2 were accompanied by reports from Food Analysts for various products. The samples of the subject products were tested by two notified laboratories in the months of November and December 2014 and the results not only show that those products contain Tartaric Acid (INS 334) (Acidity Regulator) bu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

not be added as it does not find place in Appendix A, Table 3, Row No.14. The use of any other additive would be in contravention of the provisions of the Act and the Regulations framed thereunder, was the submission of Mr Pracha. It is in these circumstances that he sought to justify the rejection letters issued by Respondent No.2. 9. After perusing the papers and proceedings in the present case and hearing the learned counsel at length, we find that the short question that needs to be answered .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ejection letters. 10. Before we deal with the relevant provisions of the Food Safety and Standards Act, 2006, it would be important to note that the said Act was enacted on 23rd August 2006 and various provisions thereof came into force on various dates during the years 2007 to 2010. The Food Safety and Standards Rules, 2011 and the FSSR, 2011 were also framed. Before bringing the said Act into force, it was found that multiplicity of food laws, standard setting and enforcement agencies, pervade .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l to the growth of the nascent food processing industry and not conducive to effective fixation of food standards and their enforcement, the Group of Ministers constituted by the Government of India held extensive deliberations and approved the proposed Integrated Food Law, with certain modifications. The Integrated Food Law was named as The Food Safety and Standards Bill, 2005. The main objective of the Bill was to bring a single statute regime relating to food and to provide for a systematic a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s The Food Safety and Standards Act, 2006. This Act provided [section 97] that with effect from such date as the Central Government may appoint in this behalf, the following enactments and orders stood repealed. 1. The Prevention of Food Adulteration Act, 1954 (37 of 1954) 2. The Fruit Products Order, 1955 3. The Meat Food Products Order, 1973 4. The Vegetable Oil Products (Control) Order, 1947 5. The Edible Oils Packaging (Regulation) Order, 1998 6. The Solvent Extracted Oil, De oiled Meal and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s, we shall now deal with certain provisions of the said Act as well as the FSSR, 2011 framed thereunder. Section 3 is the definitions clause and inter alia reads as under :- 3. Definitions.-(1) In this Act, unless the context otherwise requires,- (k) "food additive" means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including org .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ive" means any substance which becomes a component of, or otherwise affecting the characteristic of food in which it is added, and which is not normally consumed as a food by itself or used as a typical ingredient of the food. It is intentionally added to the food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packaging, transport or holding of such food. However, the definition of "food additive" does not include " .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nce or material, not including apparatus or utensils, and not consumed as a food ingredient by itself, used in the processing of raw materials, foods or its ingredients to fulfil a certain technological purpose during treatment or processing and which may result in the non-intentional but unavoidable presence of residues or derivatives in the final product. 15. Section 19 clearly prohibits any food from containing any food additives or processing aids unless it is in accordance with the provisio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l food, genetically modified articles of food, irradiated food, organic food, foods for special dietary uses, functional foods, neutraceuticals, health supplements, proprietary foods and such other articles of food which the Central Government may notify in this behalf. Explanation.-For the purposes of this section,- (1) "foods for special dietary uses or functional foods or nutraceuticals or health supplements" means:- (a) foods which are specially processed or formulated to satisfy p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

alcohol or hydro alcoholic extract, single or in combination; (ii) minerals or vitamins or proteins or metals or their compounds or amino acids (in amounts not exceeding the Recommended Daily Allowance for Indians) or enzymes (within permissible limits); (iii) substances from animal origin; (iv) a dietary substance for use by human beings to supplement the diet by increasing the total dietary intake. (b)(i) a product that is labelled as a "Food for special dietary uses or functional foods .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t, 1940 (23 of 1940) and rules made thereunder; (iii) does not claim to cure or mitigate any specific disease, disorder or condition (except for certain health benefit or such promotion claims) as may be permitted by the regulations made under this Act; (iv) does not include a narcotic drug or a psychotropic substance as defined in the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and rules made thereunder and substances listed in Schedules E and E1 of the Dru .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ards; (4) "proprietary and novel food" means an article of food for which standards have not been specified but is not unsafe: Provided that such food does not contain any of the foods and ingredients prohibited under this Act and the regulations made thereunder." 17. Section 22 was brought into force on 18-08-2010 (except in respect of matters relating to the genetically engineered or modified food as explained in clause (2) of the Explanation). It provides that no person shall m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iso further stipulates that such food should not contain any of the foods and ingredients prohibited under the Act and the FSSR, 2011 framed thereunder. 18. Having set out the relevant provisions of the Act, we shall now deal with the relevant Regulations. Regulation 3.1.1 deals with the use of Food Additives in Food Products and reads as under:- "3.1.1(1) Use of Food Additives in Food Products: The food products may contain food additives as specified in these regulations and in Appendix A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mix, puliyogare mix, pongal mix, gulab jamun mix, jalebi mix, vada mix, Rice and Pulses based Papads, Ready-to-Serve Beverages (tea/coffee based only) may contain food additives permitted in these regulations and in Table 2 of Appendix A. (3) Use of additives in Bread, Biscuits - The food products such as Bread and Biscuits, may contain food additives permitted in these regulations and in Table 1 of Appendix A. (4) Use of Food Additives in different foods - The following food products may contai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g raw meat, cereals and condiments; (iii) Fruit pulp or juice (not dried) for conversions into jam or crystalized glazed or cured fruit or other product; (iv) Corn Flour and such like starches; (v) Corn syrup; (vi) Canned Rosogulla (the cans shall be internally) lacquered with sulphur dioxide resistant lacquer; (vii) Gelatine; (viii) Beer; (ix) Cider; (x) Alcoholic Wines; (xi) Non-alcoholic wines; (xii) Ready-to-Serve beverage; (xiii) Brewed ginger beer; (xiv) Coffee Extract; (xv) Danish tinned .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tions and in Appendix 'A'. Regulation 3.1.1(4) permits the use of food additives in different foods and stipulates that the products mentioned therein may contain food additives permitted in the FSSR, 2011 and in Table 3 of Appendix 'A'. Alcoholic wines are at item (x) of Regulation 3.1.1(4). It is therefore clear that Regulation 3.1.1(4) allows food additives to be added to alcoholic wines. 20. Having said this, we have to now ascertain whether Tartaric Acid is a permitted ingre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

isation, off taste and rancidity; (ii) "Buffering Agents" means materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods; (1) Restrictions on the use of sequestering and buffering agents. Unless otherwise provided in these regulations the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of food specified in the corresponding entry in c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m Carbonate As a neutralizer in number of foods 10000 5. Calcium oxide As a neutralizer in specified dairy product 2500 6. Citric acid malic acid Carbonated beverage and as an acidulant in miscellaneous foods Limited by G.M.P. 7. DL Lactic Acid (food grade) As acidulant in miscellaneous foods Limited by G.M.P. 8. L(+) Lactic Acid (food grade) As acidulant in msicellaneous foods Limited by G.M.P. 9. Phosphoric acid Beverages, soft drinks 600 10. Polyphosphate containing less than 6 Phosphate moie .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r children below 12 months (The lactic acid shall also conform to the specification laid down by the Indian Standards Institution)." (emphasis supplied) 21. Pausing here, it must be noted that in Regulation 3.1.12(1), the column numbers should read column (2) instead of column (1), column (3) instead of column (2) and column (4) instead of column (3). The confusion arises on account of the column containing the serial numbers being numbered as (1) and the FSSR, 2011 not having accounted for .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that Tartaric Acid shall not be added to any food meant for children below 12 months. It is therefore reasonable to presume that if the intention was to prohibit the use of Tartaric Acid for any other persons or in respect of any particular food, it would have then so provided clearly. 23. On going through the FSSR, 2011, it is clear that Tartaric Acid can be added to food as an acidulant in the quantity set out in the Table mentioned therein. Merely because the same does not find place in Appe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

elied upon by Mr Chagla supports the Petitioner's case that Tartaric Acid is a permissible ingredient in alcoholic wines. The use of the word "and" in Regulation 3.1.1(1) and 3.1.1(4) does not indicate that the food additive must be stated to be permissible in food products both in the Regulations and in Appendix 'A'. It is sufficient if it is permitted either in the Regulations or in Appendix 'A'. This, according to us, would be a correct reading of the Regulations .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Regulation 3.1.12. 24. It would be important to note that it is not the case of Respondent No.2 that levels of Tartaric Acid in the alcoholic wines imported by the Petitioner are greater than 600 ppm. It is the specific case of Respondent No.2 that since Tartaric Acid is not an ingredient finding place in Appendix 'A', Table 3, Row 14 (alcoholic wines), the same is a prohibited product and therefore, cannot be permitted to be used as a food additive in alcoholic wines. For the reasons st .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

TIONS (SECOND REVISION) which categorically states at paragraph 7.5 as under:- "7.5 Colour and Additives Table wines may contain permitted food additives (except colour) as defined by PFA/CODEX/JECFA. The limits shall be in accordance with EU guidelines." 26. These Table Wines Specifications clearly state that table wines may contain permitted food additives (except colour) as defined by PFA/CODEX/JECFA and the limits shall be in accordance with EU guidelines. Paragraph 7.8 of the very .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id) g/l Max 10 10 10 5.2 of IS 7585 iv) v) (emphasis supplied) 27. Though these specifications were prior to coming into force of the Food Safety and Standards Act, 2006, it certainly throws light on the fact that Tartaric Acid was one of the ingredients permitted in table wines by the Indian Bureau of Standards. 28. Apart from this, there is yet other intrinsic evidence before us to take the view that we have taken earlier in this judgment. Some time in the year 2012, draft Regulations have bee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

view that Tartaric Acid is permitted as a food additive to alcoholic wines and the contention of Respondent No.2 that it is a prohibited product is not borne out either under the provisions of the said Act or the FSSR, 2011 framed thereunder. 29. On the same reasoning that we have held that Tartaric Acid is a food additive which is permitted to be added to alcoholic wines, we also find that Ascorbic Acid is also a permitted food additive which can be added to alcoholic wines. Regulation 3.1.5 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2011. This would clearly indicate that the FSSR, 2011 carves out an exception as far as Ascorbic Acid is concerned. In other words, Ascorbic Acid can be used as an antioxidant as set out in Regulation 3.1.5(2). This being the case and for the reasons that we have held that Tartaric Acid is a permitted food additive in alcoholic wines, we are of the view that even Ascorbic Acid is a food additive that is permitted to be added to alcoholic wines. 30. In the view that we have taken, we are squarely .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d reads thus:- "9. As we noted earlier, the main question in this petition is whether the use of the lactic acid in the petitioner's products viz. sugar boiled confectionery is permitted under the said Act, Rules and Regulations. The petitioner does not deny the fact that its products contain lactic acid. The petitioner contends that lactic acid is a permissible ingredient in its sugar boiled confectionery products. It is not the respondents case that the quantity is in excess of the pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id Act and the FSSR, 2011 (including the provisions considered by us), came to the conclusion that Lactic Acid was a permissible ingredient in sugar boiled confectionery. The finding of the Division Bench was that the use of the word "and" in Regulation 3.1.1(1) did not indicate that a food additive must be stated to be permissible in food products, both in the Regulations and in Appendix 'A'. The findings of the Division Bench relevant for our purpose are at paragraphs 11 and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

le in food products both in the regulations and in Appendix A. It is sufficient if it is permitted in either the regulations or in Appendix A. Mr. Shinde was unable to indicate any reason to the contrary. Mr. Tulzapurkar's submission is fortified by the proviso to Regulation 2.7.1 emphasized by us for it expressly states that the products "may contain food additives permitted in these Regulations including Appendix A." This makes it clear that the permissible food additives are tho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

responding entries in column No. 2 of the table. Serial No. 8 refers to lactic acid. The corresponding entry in column No. 3 is as acidulants in miscellaneous foods. In view of what we have held earlier, had sugar boiled confectionery been specifically referred to in column 3, it would have been the end of the matter for, in that event, it would be clear that lactic acid is a permissible sequestering and buffering agent in sugar boiled confectionery. The dispute arises, on account of the use of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d judgment but we are bound by the same. We, therefore, are unable to agree with the contention of Mr Pracha that because Tartaric Acid and Ascorbic Acid do not find mention in Appendix 'A', Table 3, Row No.14, the same are not permitted ingredients in alcoholic wines, under the provisions of the Food Safety and Standards Act, 2006 and the FSSR, 2011 framed thereunder. 33. We must mention here that the judgment in Parle Biscuit's case was carried in appeal to the Supreme Court by way .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t was clarified that this order ought not to be construed as a mandate to the High Court to entertain the Review Petition. The order of the Supreme Court reads thus:- "This petition is directed against order dated 19.12.2012 of the Division Bench of the Bombay High Court vide which the writ petition filed by respondent No.1 questioning the action taken by the functionaries of the State for seizure of its food products and raw material under the Food Safety and Standards Act, 2006 read with .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

with liberty in terms of the prayer made. However, it is made clear that this order shall not be construed as a mandate to the High Court to entertain the review petition and if any such petition is filed, the High Court shall decide the same on its own merits." 34. Faced with the judgment of this Court in Parle Biscuit's case, Mr Pracha tried to distinguish the same on the ground that the product in question before the Division Bench in Parle Biscuit's case was sugar boiled confect .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h it is stated as under:- "This office is not in position to issue NOC of the product(s) mentioned above as the result(s) of the inspection / analysis shows that the sample(s) confirm to the specification under the FSS Act 2006 and rules and regulations made thereunder. This is for your information and necessary action please. Remark: The sample does not conforms as the sample contains "Acidity Regulator, Tartaric Acid (INS334) which is not permitted as per Appendix A, Table No.3, Row .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version