TMI Blog2014 (9) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... ar oils, still being sold in the market. Rectification of a labelling deficiency not permissible under any law cannot be ordered by the High Court in exercise of power under Article 226; and in any case, illegal grant of NOC to any other importer for the same articles of food cannot entitle a subsequent importer to seek NOC. An order for perpetuation of an illegality cannot be passed by the High Court in exercise of power under Article 226. - Decided against the respondents / imports. - MAT No.1252 of 2014 With CAN No.7098 of 2014 - - - Dated:- 22-9-2014 - MR. JAYANTA KUMAR BISWAS AND MR. ISHAN CHANDRA DAS, JJ For the Petitioner : Mr. Mehmood Pracha, Mr. S. Moitra, Mr. G. Purkayastha For the Respondent : Mr. Kishore Datta, Mr. D. Banerjee, Mr. A. Gupta For the Customs : Mr. P.K. Roy And Mr. K.K. Maity ORDER JAYANTA KUMAR BISWAS, J:- 1. The appellant in the MAT is questioning a single Judge decision dated June 30, 2014 allowing the first respondent s WP No.11545 (W) of 2014 under Article 226 of the Constitution of India. 2. The first respondent (hereinafter referred to as Heartland ) imported from Canada edible grade refined oils called H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2(1), 2.4.2(2), 2.4.2(5) and 2.4.2(11) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 and reg.2.3.14(11) of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. 9. The deputy director said as follow: Looking into the labeling discrepancies the samples cannot be drawn. In light of the above, non-compliance status of labeling requirements/declarations on the labels of imported food articles, sampling is not allowed in this imported consignments. 10. Feeling aggrieved by the decision of the deputy director dated March 27, 2014 Heartland moved this court for the third time by filing the WP that was allowed by the single Judge by the decision under appeal. 11. In WP para.6 Heartland stated the following case: 6 .In this regard, your petitioner states that Canola Oil has been allowed to be imported and sold in India, vide Public notification No.49/2009-2014 dated March 18, 2010, as published in the Gazette of India Extraordinary (Part 1 Section 1), under Ministry Of Commerce. Canola Oil is being sold from various retail stores and supermarkets by different brands in India and which are 100% impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contended by the respondents. 17. The decision of the single Judge dated June 30, 2014 is quoted below: Pursuant to order dated 19th June, 2014 the petitioner had served an advance copy of the supplementary affidavit intended to be used by them upon the respondent Nos. 2 and 3 by the Saturday next for the said respondents to obtain complete instructions in the matter. Today, Mr. Maitra, learned advocate appearing on behalf of the said respondents submits that there is no defect in the quality of the oil which the petitioner wants to import. The only problem according to him is that the label does not contain, inter alia, the word Rapeseed Oil to explain to the consumer that the product sought to be sold in the name of Canola Oil is Rapeseed Oil . Annexures to the supplementary affidavit demonstrate that other importers have been allowed to import and sell in the Indian market edible oil by the name Canola Oil which do not mention in the label that they have been obtained from Rapeseed . Mr. Dutta, learned Senior Advocate appears on behalf of the petitioner submits by drawing attention to page 9 of the supplementary affidavit that additional label ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e major labelling deficiencies. No law entitled Heartland to rectify the deficiencies. This view is supported by an unreported decision of a Division Bench dated September 5, 2014 in APO No.323 of 2014 (Authorized Officer, etc. v. Sarad Kumar Bohra Ors.). Since Canola oil is not a standardized oil, it was not possible to test its quality. The samples taken under court order were tested for ascertaining the features of refined rapeseed oil. The WP was liable to be dismissed. 19. Mr. Dutta appearing for Heartland has also made a lengthy submission whose substance is as follows: The labels on the articles suffered from no deficiency. The things pointed out by the authorised officer and accepted by the deputy director cannot be any labelling deficiency. In any case, when Heartland was ready to label the articles in the manner the authorised officer suggested, there was no reason for the deputy director to refuse the permission to do that. Canola oil is not a new thing to the Food Authority. The Government and the Food Authority previously permitted import of the same Canola oil, which is a trademarked variety of rapeseed oil widely used as cooking oil globally. The single J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any unsafe or misbranded or sub-standard food or food containing extraneous matter; (ii) any article of food for the import of which a licence is required under any Act or rules or regulations, except in accordance with the conditions of the licence; and (iii) any article of food in contravention of any other provision of this Act or of any rule or regulation made thereunder or any other Act. (2) The Central Government shall, while prohibiting, restricting or otherwise regulating import of articles of food under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), follow the standards laid down by the Food Authority under the provisions of this Act and the rules and regulations made thereunder. 23. Sub-sections (1) and (2) of s.26 of the Act are quoted below: (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under the control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht; and under reg.2.4.2(1) of the regulations the labels were not to use the expressions Anti Cholesterol, Saturated Fat Free, etc., or such other expressions. 29. The objection of the authorised officer was that the labels on Heartland s oil containers bore the impermissible: No Cholesterol, No Trans Fat, and Low in Saturated Fat; when only trans fat free and saturated fat free claims would have been permissible, if at all. According to Heartland, the claims borne by the labels were permissible. 30. Under reg.2.4.2(2) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 every container in which the imported Canola oil was packed was to bear the name, trade name, if any, or description of the oil. According to Heartland, every container bore the trade name Heartland s CHOICE, and the description of the oil Pure Canola Oil. According to the authorised officer, the name of the oil, not borne by the containers, was a must. 31. Under reg.2.4.2(4) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 the containers in which the Canola oil and the Oliveola, the blended oil, were packed ought to have borne the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e oil imported by Heartland could be sold only as Blended Edible Vegetable Oil, and under AGMARK certification mark. 37. Heartland contending that the labels on the containers of the oils fulfilled most of the requirements as per law, at once requested the deputy director to allow it to rectify the labeling requirement by pasting a new label that fulfills the requirement. The deputy director accepting the authorised officer s view that no law entitled Heartland to rectify the deficiencies, however, mentioned the things that could be rectified by stickers. 38. Thus, the principal question in the WP was whether the deputy director was wrong in accepting the authorised officer s objections that the labels on Heartland s imported Canola oil and Oliveola did not fulfill the requirements of the regulations mentioned in his decision dated March 27, 2014. 39. The deputy director s decision dated March 27, 2014 was in question in the WP. He mentioned the several labelling deficiencies for which samples of the articles were not taken for the NOC purpose. Heartland s case in the WP was that there was no labelling deficiency, and that the deputy director was wrong in saying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The absence of trans fat content and saturated fat content declaration and the presence of No Cholesterol, etc. declaration on the labels again contravened regs.2.2.2(3)(v)(iv) and 2.4.2(1) of the regulations. 47. As to the food name, we are unable to accept that the authorised officer was wrong in saying that mere use of the expression Canola oil instead of the food name Rapeseed Oil, if Canola oil is really rapeseed oil and Oliveola is a blend of rapeseed oil and Olive oil, could not fulfill the mandatory requirements of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. Absence of the food name contravened the regs.2.4.2(2) and 2.4.2(5) of the regulations. 48. As to name or description of the contents in the containers, absence of the expression free from Argemone Oil contravened the reg.2.4.2(4) of the regulations; and the absence of name and nature of one oils of the blended oil contravened the reg.2.4.2(11) of the regulations. And the absence of the expression Blended Edible Vegetable Oil, and AGMARK clearly contravened the reg.2.3.14(11) of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the government had permitted import of the oils; and that the Food Authority officials had previously granted NOC to others who imported the oils and similar oils, still being sold in the market. 56. In view of the provisions of ss.25(2) and 89 of the Food Safety and Standards Act, 2006 the government notification permitting import of the oils cannot entitle an importer to deal in the oils, even when their labelling does not fulfill the requirements of the regulations, and any previous illegal grant of NOC to any importer cannot create a right to seek repetition of the illegality. 57. Rectification of a labelling deficiency not permissible under any law cannot be ordered by the High Court in exercise of power under Article 226; and in any case, illegal grant of NOC to any other importer for the same articles of food cannot entitle a subsequent importer to seek NOC. An order for perpetuation of an illegality cannot be passed by the High Court in exercise of power under Article 226. 58. In our opinion, the single Judge not examining the correctness of the several specific reasons given by the deputy director in his decision and allowing the WP on an impermissible basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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