TMI Blog2016 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... li 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' and 'energy chews' of different flavours. UNPL placed orders on GU Energy Labs, 1609 4th St. Berkeley, CA, USA on 5th June 2015 for supply of 'energy gel' and 'energy chews' amounting to USD 13,317.60. Pursuant to the above order, the said goods were shipped on 13th June 2015. The place of delivery was the Inland Container Depot (ICD), Patparganj. 2. On arrival of goods at ICD, Patparganj, the Petitioner filed the first check bill of entry No. 2540559 ('BE') 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the present writ petition was filed. 5. At the hearing on 20th November 2015 the Court passed the following order: It appears that there is a software glitch at the end of the Customs Department as a result of which the Indian Customs Single Window Project is not functioning properly. Because 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 of the Court Master. 6. On the subsequent hearing on 26th November 2015 it was realized that the Customs 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 online, the Customs ICES would integrate the data in the ICES database which would then be available to the Customs officer concerned. 11. In Circular No. 9 of 2105, a reference is made to the earlier Circular No. 3 of 2011 dated 6th January 2011 and it is stated that import consignments that have been tested on previous five consecutive occasions under the 2011 Circular and found in order may not be referred to FSSAI. 12. As far as the present case is concerned, it appears that the sample was drawn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 exist, and may contain one or more of the following ingredients, namely:- (i) plants or botanicals or their parts in the form of powder, concentrate or extract in water, ethyl 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 increa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in State of Rajasthan v. Shri Noor Mohammad (1972) 2 SCC 454 and Lalu Prasad Yadav v. State of Bihar (2010) 5 SCC 1 and to the fact that FSS Regulation 2011 makes a specific reference to 'Proprietary Food' under Regulation 2.12.1 read with Appendices A and B thereof. It is further submitted that once the consignment satisfied the requirement of the FSS Act there was no justification for FSSAI to withhold the NOC. 18. Countering the above submissions it is submitted by Ms. Ahmadi that the understanding of the FSSAI 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the OPL does appear to indicate that the samples sent to it did contain some of the above details, the FSSAI is right in its contention that it was not kept in the loop when samples were drawn by the Customs and sent to OPL and this was not in accordance with the procedure under Circular 9 of 2015. 24. Ms. Manish, learned counsel for the Petitioner, pointed out that as far as the Petitioner is concerned, it cannot be blamed for going along with the Customs Department which drew the sample and sent it to OPL in terms of the earlier Circular No. 3 of 2011. It is also pointed 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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