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TMI Blog2015 (12) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate report under the Foods Safety and Standards Act, 2006, and the Rules and Regulations made thereunder to the second respondent / the Assistant Commissioner of Customs (Group 2A), Chennai, to enable the petitioner to clear the goods covered by Bill of Entry No.7053313, dated 13.10.2014. 2. The petitioner Company had imported 80 packages of 'Erythritol' from China, vide Bill of Entry No.7053313, dated 13.10.2014. Thereafter, the second respondent referred the goods to the first respondent for ensuring compliance of the provisions of the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder. However, the first respondent refused to draw the samples for testing on the ground that the product in question did not contain the label with the required declaration as per the provisions of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (in short "Labelling Regulation"). According to the first respondent, these defects were non-rectifiable. Therefore, the petitioner submitted a representation to the Deputy Director, FSSAI, stating that the imported goods contain a label and it specifies the lot number, net weight and the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed to be tested and if the samples are found to be fit for human consumption, the goods could be released, he pleaded. 4. By referring to Section 3(1)(f) of the Act, learned counsel submitted that an industrial user or an entity, which purchases food items for utilizing the same in their production process, would be excluded from the definition of the expression 'consumer', therefore, it goes without saying that the product, which fall under the definition of food, meant not for direct human consumption but for sale to industrial consumers for use in manufacture of articles of food, would be excluded from the definition of 'pre-packaged' or 'pre-packed' food. As long as packaged food contains food items, which are ready for personal consumption, the same would fall within the definition of 'prepackaged' or 'pre-packed' food and that the items, that are meant for direct consumption by individual would fall completely outside the definition of 'pre-packaged' or 'pre-packed' food. Therefore, by applying the provision, he pleaded that since the goods in question are not 'pre-packaged' or 'pre-packed' food, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, the petitioner has to mandatorily comply with the requirements under the Act, Rules and Regulations laid down thereunder. Therefore, the contention of the petitioner that the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder are not applicable on the product in question is completely devoid of merit. With these submissions, he prayed for dismissal of the writ petition. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 8. The only controversy needs to be addressed is whether it is only pre-packaged food required to be labelled as per the Food Safety and Standards (packaging and Labeling) Regulations, 2011 but also any kind of food? 9. The subject food namely, 'Erythritol' is admittedly a raw material used in the manufacture of artificial sweetner. 80 packages of Erythritol were imported by the petitioner from China vide Bill of Entry No.7053313 dated 13.10.2014. The 2nd respondent/Assistant Commissioner of Customs (Group 2A), Customs House, Chennai, referred the goods to the 1st respondent/Authorised Officer, Chennai Seaport & Airport, Food Safety and Standards Authority of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding 'date of manufacture or packing' on the label and it provides that if "Best Before Date" of the product is more than three months then the month and year of manufacture, packing or pre-packing of the commodity shall be provided in the label and if the life span of commodity is short and less than three months then the date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label. Regulation 2.2.2.10 of the Labelling Regulations refers to the 'Best Before and Use By Date' on the label. The relevant portion of Regulation 2.2.2.9 and 2.2.2.10 of the Labelling Regulations are extracted hereunder:- 9.Date of manufacture or packing--- The date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label: Provided that the month and the year of manufacture, packing or pre-packing shall be given if the "Best Before Date" of the products is more than three months; Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or pre-pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to, as per Section 3(j) of the Act, the goods are admittedly not meant for direct consumption but are intended for industrial use in manufacture of the goods which fall within the category 99 of the Indian Food Code that includes substances added to food which are not for direct consumption as food, is also to be repelled as a misconceived contention for the following reason. 14. The subject food 'Erythritol' is admittedly used for manufacture of artificial sweetener however finally the same is consumed as a food by the consumers, therefore, it cannot be argued that 'Erythritol' is used as a food additive in manufacture of food which would fall outside the definition of pre-packaged or pre-packed food, hence, it is again a misconceived contention. In this regard, it is relevant to extract Section 3(j) and 3(k) of the Food Safety and Standards Act, 2006. 3(j) "Food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is used as a food additive in manufacture of the foods and cannot be termed as item which meets the personal needs of the consumers, is liable to be rejected outright, therefore, the impugned order rejecting the request for drawing of sample from the consignment for analysis cannot be interfered with. 16. Yet another request of the petitioner giving undertaking to affix necessary label on the imported goods as all the details required by the respondents are available in the imported documents such as certificate of origin and certificate of analysis, since it is a question of transferring the details from the imported documents to the label so as to facilitate the goods to be sent for testing, is also bereft of any merits. The reason is, when the petitioner failed to affix necessary label on the imported goods with all details, namely, 'Best before use', 'Use by date', and date of manufacture, it is not known whether the goods in question is having the life time for further future use, therefore, this Court finding that the product in question namely, 'Erythritol' has miserably failed to satisfy the labelling requirements, is not able to see any merits in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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