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2015 (12) TMI 1147 - MADRAS HIGH COURT

2015 (12) TMI 1147 - MADRAS HIGH COURT - 2015 (326) E.L.T. 477 (Mad.) - Import of Erythritol - 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 - Rejection of the request of the petitioner for drawing the samples from the consignment for analysis - Held that:- Goods in question namely, 'Erythritol' whether it is a food or food additive is admittedly a food product and finally eat .....

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foods whether it is going to be sent to retail outlet or directly to the market for consumption, the labelling regulations will apply.

As a matter of fact, all goods are likely to perish, hence, to avoid undue delay in clearance that may result in degradation of the product making it useless of the food item, labelling has been made mandatory, therefore, the contention advanced by the petitioner that the goods in question 'Erythritol' is used as a food additive in manufacture of the .....

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urther 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 this writ petition, hence, the same fails and is dismissed - Decided against the assessee. - W.P.No.4958 of 2015 And M.P.No.1 of 2015 - Dated:- 25-9-2015 - MR. T. RAJA, J For the Petitioner : Mr. Hari Radhakrishnan For the Respondent : : Mr. K. Surendranath, Standing Counsel And Mr. Xavier Felix, Standing C .....

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ubject goods viz. ERYTHRITROL, as it is admittedly a raw materials used in the manufacture of artificial sweetener. The petitioner has also sought a direction to the first respondent to send appropriate 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 peti .....

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on 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 name of the manufacturer and it further stated that the import documents filed along with the Bill of Entry, .....

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sting of the samples imported on the ground that the date of manufacture, best before date and name and address of the manufacturer are not mentioned on the label which is mandatory. Thus, the present writ petition with a prayer cited supra. 3. Assailing the impugned order passed by the first respondent, Mr. Hari Radhakrishnan, learned counsel appearing for the petitioner submitted that the goods in question, namely, 'Erythritol' is a sugar alcohol, therefore, by referring to Section 3(k .....

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cturing, processing, preparation, etc. and the same would result in it either becoming a component of the food or otherwise affecting its characteristic. By citing so the above said definition, learned counsel further contended that the goods imported by the petitioner clearly fall within the definition of food additive and thus, the same cannot be termed as an item which meets personal needs of consumers. He further submitted that the subject goods viz. Erythritrol are admittedly used for manuf .....

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dustrial 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 .....

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ions of the Labelling Regulations are inapplicable to the case on hand. 5. In support of his submissions, he has also relied upon a judgment of the Delhi High Court in the case of Danisco (India) Private Limited v. Union of India and another (CDJ 2014 DHC 2063) to contend that the provisions of the Labelling Regulations are inapplicable to food additives which are meant for industrial use. With these submissions, he sought for setting aside the impugned order. 6. Per contra, Mr. K. Surendranath, .....

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isclaimer on the label barring retail sale of the product, therefore, the products of the petitioner meant for retail as well as industrial sale and thus the contention of the petitioner that the same are meant solely for industrial use are without any merit. It is further submitted that the product in question within the definition of 'food additive' cannot have any exemption and therefore, the petitioner product ought to have complied with the labelling, since the labelling has to be d .....

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ither the label nor any document issued by the exporter states that the same is for industrial use only. 7. Learned counsel for the first respondent, by referring to Section 25 of the Act, contended that no person shall import into India any unsafe or misbranded or sub-standard food or food containing extraneous matter, therefore, since the product of the petitioner is covered under the Act, the petitioner has to mandatorily comply with the requirements under the Act, Rules and Regulations laid .....

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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/Authoris .....

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were non rectifiable, whereas the case of the petitioner is, imported goods contain a label and specifies the lot number, net weight and the name of the manufacturer. The imported documents filed along with the bill of entry in particular the certificate of origin and the certificate of analysis contain the details such as, the manufacturing date, expiry date, product description, lot number and manufacturer details, therefore, the samples imported could be sent for testing. In this regard, it i .....

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any packaged food products which are not marked and labelled in the manner as may be specified by regulations; Provided that the labels shall not contain any statement, claim, design or device which is false or misleading in any particular concerning the food products contained in the package or concerning the quantity or the nutritive value implying medicinal or therapeutic claims or in relation to the place of origin of the said food products. (2) Every food business operator shall ensure that .....

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ufacture 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 Befor .....

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ntains 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-packed shall be mentioned on the label. 10.Best Before and Use By Date (i) the month and year in capital letters upto which the product is best for consumption, in the following manner, namely:- BEST BEFORE...............MONTHS AND YEAR OR BEST BEFORE............MONTHS FROM PACKAGING OR BEST BEFORE............MONTHS FROM MANUFACTURE 11. In th .....

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t before or use by date' is mentioned on the label, the date of manufacturing or the month and year of manufacturing is necessary depending upon whether the best before date is more than three months or less than three months. 12. As a matter of fact, it is not the case of the petitioner that the date of manufacture or packing of the commodity are mentioned on the non-removable label which are mandatory as per the Regulations 2.2.2.9 and 2.2.2.10. Whileso, merely saying that the imported doc .....

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manufacturing date and expiry date had not been mentioned on the labels which are most essential in order to ascertain whether 60% of the shelf life of the product remains unexpired, hence, the samples could not be sent for further testing deserves to be accepted. 13. The second contention putforth by the petitioner is that the goods in question namely, 'Erythritol' is used for food additive in manufacture of foods, therefore, the same cannot be termed as item which meets personal needs .....

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ial 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 .....

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prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances: Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality; 3(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 .....

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rovision clearly shows that the goods in question namely, 'Erythritol' whether it is a food or food additive is admittedly a food product and finally eatable, therefore, even the remote argument of the petitioner that the product of the petitioner are indeed meant for retail as well as industrial sale, hence, they need not be labelled, is highly unacceptable as per the regulation 2.2.2 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 which states that every pa .....

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