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2016 (1) TMI 794 - DELHI HIGH COURT

2016 (1) TMI 794 - DELHI HIGH COURT - 2016 (334) E.L.T. 255 (Del.) - Import of food items, i.e., 'energy gel' and 'energy chews' of different flavours - prohibited items or not - Scope of Food Safety Standard Authority of India ('FSSAI') - Held that:- The mere fact that 'energy gel' and 'energy chew' are not mentioned in Appendices A and B would not ipso facto mean that they are prohibited from being imported. The FSSAI will have to examine if 'energy gel' and 'energy chew' which are proprietary .....

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ples. - W. P. (C) No. 10666/2015 - Dated:- 18-1-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Appellants : Mrs Anjali J Manish with Ms Priyadarshi Manish & Mr Karan Chawla, Advs For the Respondents : Ms Tasneem Ahmadi with Mr Pramod Kumar, Ms Shubhi Khare & Mr Rudro Chatterjee, Advs. Mr Sumit Gaur, proxy counsel for Mr Kamal Nijhawan, senior counsel ORDER 1. The Petitioner, Unlimited Nutrition Pvt. Ltd. ('UNPL'), is engaged in the import of food items, i.e., 'energy gel& .....

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dated 9th September 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 .....

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e 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 of the samples that the condition of seals on the poly pouch was intact and satisfactory and the sample was 'energy gel' falling under Regulation No. 2.12.1 of Food Safety and Standards (Food Products Standards and Food Additives) Regulation 2011 ('FSS Regulation 2011'). .....

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at the imported goods would be sold in India in full boxes only and that the individual sachets would not be sold in the market. In the office noting of the Department it was stated that the BE was finally assessed by the Deputy Commissioner (Group) on the basis of the report received from M/s. OPL. However, the online system had failed to accept the final assessment. The Petitioner was given the understanding that overriding permission would be sought for issuance of the OOC order. The Petition .....

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cause of this, the Customs Department has not been able to transmit the 'BE message' to FSSAI, even though the assessment has been completed in respect of the said bill of entry. Unless and until, the online communication takes place, the FSSAI would not be in a position to give the clearance. Mr.Nijhawan, the learned counsel appearing on behalf of the Customs Authority, requests for some time to ensure that the glitch is removed. Renotify on 26th November 2015. Dasti under the signature .....

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015. 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 permissi .....

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SSAI and the Customs with effect from 1st April 2015 at JNPT (Nhava Sheva), ICD, Tughlakabad and ICD, Patparganj. The idea was to provide "seamless online exchange in real time of the Customs Bill of Entry (Import declaration) with these agencies and Release Order ('RO') from both the agencies would be received by the Customs in electronic message format." 8. The broad scheme of this Single Window Clearance System (also known as ICEGATE) was that the Indian Customs EDI ('IC .....

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released by the Customs (b) Destruction - goods to be destructed by the Customs (c) Deportation - goods to be exported back to the country of origin (d) No Objection Certificate (NOC)- goods can be released by the Customs (e) NCC (Non-compliance Certificate) - non-rectifiable defects observed in the goods (f) Product out of scope - goods are out of scope for FSSAI/PQIS." 10. If the RO fell under types (b), (c) and (e) above, the OOC would not be allowed by the ICES. On receipt of the RO on .....

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wn by the Customs Officer and sent for testing to M/s. OPL in terms of the previous Circular No. 3 of 2011 dated 6th January 2011 although in terms of Circular No. 9 of 2015, the Customs had to first send a BE message 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 sa .....

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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, triberry, espresso love, lemon sublime, strawberry banana, caramel macchiato, vani .....

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. Lot No. & manufacturer name and address were not specified on the label of all the products mentioned in the BE which contravene the regulation no.2.2.2(8) & 2.2.2(6) of FSS (Packaging and Labelling) Regulation, 2011 respectively." 16. One of the central issues that arise is whether proprietary foods are completely outside the purview of the FSS Act, particularly in terms of Section 22 thereof, which reads as under: "22. Genetically modified foods, organic foods, functional f .....

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t;foods for special dietary uses or functional foods or neutraceuticals or health supplements" means: (a) foods which are specially processed or formulated to satisfy particular dietary requirements which exist because of a particular physical or physiological condition or specific diseases and disorders and which are presented as such, wherein the composition of these foodstuffs must differ significantly from the composition of ordinary foods of comparable nature, if such ordinary foods ex .....

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y 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) s .....

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ined 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 EI of the Drugs and Cosmetics Rules, 1945; (2) "genetically engineered or modified food" means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered o .....

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the Petitioner, that in terms of the opening words of Section 22 of FSS Act, "save as otherwise under this Act", read with Explanation (4) thereof, unless the proprietary food is unsafe or contains any of "the foods and ingredients prohibited under this Act and the regulations made thereunder", proprietary food was not as such outside the ambit of the FSS Act. She buttressed the above submission with a reference to the decisions of the Supreme Court in State of Rajasthan v. .....

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AI was that unless specifically permitted under any of the regulations under the FSS Act, proprietary food is generally not permissible to be imported in terms of Section 22 of the FSS Act. It is pointed out that none of the Regulations mention energy gel or energy chews products. Therefore, according to the FSSAI, the consignment cannot be permitted to be imported under Section 22 of the FSS Act. 19. Having considered the above submissions in light of the relevant provisions of the FSS Act and .....

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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 no .....

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ossibly, the nature or composition of food and/or category of the food under which it falls in these regulations shall be mentioned on the label; (ii) the proprietary food product shall comply with all other regulatory provisions specified in these regulations and in Appendices A and B." 20. The mere fact that 'energy gel' and 'energy chew' are not mentioned in Appendices A and B would not ipso facto mean that they are prohibited from being imported. The FSSAI will have to e .....

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r. These relate to the label on the packages and about them not mentioning the date of manufacture, and the manufacturer's name and address and the lot number. 23. As far as this Court is concerned, it is not clear from the said letter whether any of the packages contained any of the above information as required by Clauses 6, 8 and 9 under Regulation 2.2 of the Food Safety and Standards (Packaging and Labelling) Regulations 2011 ('FSS Packaging Regulation 2011'). Although the report .....

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