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TMI Blog2016 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 2015 for the purpose of clearance for home consumption. A copy of the BE indicates that the consignment was of 94 cartons which in turn contained boxes and each box contained 24 packets/sachets. It appears that in terms of the provisions of the Food Safety Standard Act, 2006 ('FSS Act') for the import of any food articles, the Food Safety Standard Authority of India ('FSSAI') issues a 'No Objection Certificate' ('NOC') in order that the Customs Department may issue an 'Out of Charge' ('OOC') order. 3. It is stated by learned counsel for the Petitioner that there were 17 different types of energy gel and energy chews that formed part of the imported consignment. One sample of each was drawn by the Customs officer and sent for testing to M/s. Ozone Pharmaceuticals Limited ('OPL') which was notified as accredited laboratory by the National Accreditation Board for Testing and Calibration Laboratories in terms of the Notification dated 1st April 2015 of the Ministry of Health and Family Welfare. OPL tested the samples drawn and submitted its report under cover of letter dated 12th October 2015 certifying in respect of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department had not transmitted to the FSSAI the BE message. The Court then passed the following order: "The 'BE' shall be manually supplied by the Customs Authorities to the FSSAI within one day. The FSSAI shall also draw the samples, if necessary, within one day. The report of the FSSAI shall be made available to this Court by the next date of hearing. Renotify on 03.12.2015. Dasti under the signatures of the Court Master." 7. At this stage it must be mentioned that the case of the Petitioner hinges on the Single Window Clearance System that was introduced by Circular No. 9 of 2015 dated 31st March 2015 issued by the Central Board of Excise & Customs, New Delhi ('CBEC') with the purpose of facilitating online customs clearance 'at a single point only with the Customs'. The purpose of the system was to facilitate the obtaining of permissions from other regulatory agencies like Animal Quarantine, Plant Quarantine, Drug Controller, Textile Committee etc. without the importer/exporter having to separately approach these agencies. The Single Window also provided the importers/exporters a single point interface for customs clearance of import and export go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to FSSAI. 13. Ms. Anjali Manish, learned counsel for the Petitioner, submitted that this was perhaps on account of the fact that the ICD at Patparganj did not have any authorized officer under the FSS Act and therefore, in terms of para 11 of the said Circular No. 3 of 2011, the sample was drawn by the Customs Officer and sent it to one of the accredited laboratories, i.e., OPL. 14. However, it is stated by Ms. Tasneem Ahmadi, learned counsel for Respondent No. 2 FSSAI, that her instructions are that an officer of FSSAI is available at ICD, Patparganj and FSSAI ought to have been kept in the loop when the above exercise was carried out by the Customs. 15. Be that as it may be, pursuant to the order of the Court dated 26th November 2015, it appears that an officer of FSSAI did go to ICD, Patparganj. However, he declined to lift any sample from the consignment. By a letter dated 2nd December 2015 addressed to the Deputy Commissioner of Customs, ICD, Patparganj, he gave the following reasons for not drawing the samples: "1. The category of imported products mentioned on the label were as Energy Gel (salted caramel, peanut butter, mandarin orange, vanilla bean, chocolate outrage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding 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 or neutraceuticals or health supplements or similar such foods" which is not represented for use as a conventional food and whereby such products may be formulated in the form of powders, granules, tablets, capsules, liquids, jelly and other dosage forms but not parenterals, and are meant for oral administration; (ii) such product does not include a drug as defined in clause (b) and ayurvedic, sidha and unani drugs as defined in clauses (a) and (h) of section 3 of the Drugs and Cosmetics Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the FSS Act and FSS Regulation 2011, the Court is of the view that the submission of the FSSAI that proprietory foods fall entirely outside the ambit of the FSS Act is not borne out on a correct and holistic reading of Section 22 thereof together with the FSS Regulation 2011 and other Regulations. As rightly pointed out by the Petitioner, the opening words of Section 22 'save as otherwise provided under this Act' are meant to narrowly tailor the prohibited categories, and not keep all proprietory goods of whatever nature entirely out of the ambit of the FSS Act and Regulations thereunder. The crucial words in Explanation (4) indicate that what is meant to be prohibited for import are proprietary foods that are 'unsafe'. The proviso thereto further indicates that proprietary food containing "any of the foods and ingredients prohibited under this Act and the regulations made thereunder" are meant to be kept out of the preview of Section 22 of the Act. If the intention was to not permit any proprietary food of any kind whatsoever, there would be no need to describe 'proprietary foods' under Regulation 2.12.1 of FSS Regulation 2011 as under: "2.12.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out that necessary charges for getting the samples tested by OPL have already been paid by the Petitioner. It was stated that the Petitioner cannot be asked to again incur expenses for getting the samples drawn and tested afresh. 25. The Court nevertheless is of the view that the Customs Department cannot be asked to issue the OOC without samples of the products, which are admittedly food items, being tested to the satisfaction of FSSAI, which is a requirement under Circular 9 of 2015. 26. Accordingly, it is directed that without any further wastage of time, the authorised officer of FSSAI will visit ICD, Patparganj not later than 11 am on Wednesday, i.e., 20th January 2016. In the presence of the authorized representative of the Petitioner, the officer of the FSSAI will visually inspect each of the packages and indicate to the Petitioner which of them does not satisfy the requirement of the FSS Packaging Regulation 2011. Thereafter samples will be drawn by the officer of the FSSAI from those packages that satisfy the FSS Packaging Regulation 2011. The procedure/protocol set out under Section 47 of FSS Act will be followed while taking samples. The test report of the ingredie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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