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2015 (7) TMI 1097 - DELHI HIGH COURT

2015 (7) TMI 1097 - DELHI HIGH COURT - 2016 (335) E.L.T. 438 (Del.) - Seeking direction to issue NOC to allow clearance of duty payable on perishable goods - Imported Rostaa processed triangle cheese lying in the warehouse for more than four months. - Held that:- the petitioner as per the requirement of notification S.O. 655(E) dated 07.07.2001 of the Ministry of Agriculture imported the subject goods into India with a SIP and the said shipment arrived into India on 10.09.2014, which is prio .....

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ot been able to convince this Court so as to whether the said certification meets the Indian vegetarian requirements and standards. Therefore, the submission of the respondents that the conditions need to be certified as the other ingredients viz. cheddar cheese, butter, milk protein concentrate have been imported from other countries by the manufacturer in Egypt in addition to skimmed milk powder from India, finds favour with this Court. - It is a contention of the respondents that the conc .....

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s no justifiable reason so as to understand why any deficiency on the part of the Indian importer/petitioner cannot be made up by the petitioner itself in India. The object of this entire process is to satisfy the respondents/concerned authority that no animal rennet has been used in the process of creation of the subject goods. In order to issue a NOC, the respondents must be satisfied so as to the veracity of the declaration on the label and the requisite tests need to be carried out in this r .....

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samples. Petition disposed of - W.P.(C) 1998/2015 - Dated:- 15-7-2015 - MR. VED PRAKASH VAISH, J For the Petitioner : Mr. Alok Yadav, Adv. For the Respondent : Ms. Bharti Raju, CGSC JUDGMENT 1. This is a petition under Article 226 of the Constitution of India to direct the respondents to issue a No Objection Certificate (hereinafter referred to as NOC ) to allow clearance of duty paid on perishable goods- Rostaa processed triangle cheese that has been lying in the warehouse for more than four mo .....

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from Egypt into India. In this regard, the petitioner purchased the subject goods from Al Nour for Dairy Industries, Egypt, who is engaged in the business of producing processed cheese under the supervision of the veterinary and exports the processed products to other countries. Section 3A of the Livestock Importation Act provides that the central government may by notification restrict the import of any live stock product which may affect the human or animal health. The term Livestock Products .....

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provided in the Notification No. 18(RE-2013)/2009-14 dated June 11, 2013 issued by the Directorate General of Foreign Trade. The Livestock Import Notification also specifies the procedure pursuant to which the sanitary import permit would be issued by DADF. 3. The petitioner in due compliance with the applicable laws applied for a certificate to the DADF for import of the subject goods and filed an application describing the product sought to be imported and mentioned that the livestock product .....

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inter alia stating may be allowed as per sanitary conditions given in the attached sanitary certificate for import of milk and milk products into India. On 10.09.2014, the consignment of the subject goods arrived at the Nhava Sheva Port. The consignment was accompanied with all relevant documents including the sanitary certificate dated 05.08.2014 issued by Ministry of Agriculture and Land Reclamation General Organization for Veterinary Services, under Secretary of State for Veterinary Affair, .....

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issued the NOC. In the said certificate, FSSAI clearly specified as under: This office has no objections if this consignment is released from this port as the result(s) of the analysis shows that the samples conform to the specifications prescribed under the Food Safety and Standards Act, 2006 and the regulations made thereunder. 4. Since the NOC was issued by FSSAI, all relevant information that was required to be provided as per the applicable provisions of law was provided and all due formali .....

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rtificate in the prescribed format. The representatives of the petitioner deliberated with the concerned officers and highlighted the fact that the subject goods are perishable in nature and the raw material that was used by the Egyptian exporter was of Indian origin. Relevant documents in this regard were also produced, however, the concerned officer still refused to issue the NOC. The petitioner even wrote a letter dated 28.11.2014 with the offices of respondent No.2, 3 and 4 reiterating the f .....

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e petitioner was informed that the counselor of the Indian Embassy, Cairo responded to the email sent by the office of respondent No.4. In reply, the counselor has clearly stated that the General Organization for Veterinary Services has confirmed that the samples of the subject goods from the exporter were tested and found to be fit and no issues were found in the samples that were tested. At present, duty paid subject goods are lying in a bonded warehouse as the same cannot be cleared for home .....

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sanitary certificate be issued in the format of the sanitary certificate attached to the import permit. The sanitary certificate issued by the Egyptian authorities substantially conformed to the requirements in the sanitary certificate attached to the import permit. FSSAI is the foremost authority in the country in matters relating to standards of food products. Section 25(2) of the FSSAI Act provides that the central government shall, while prohibiting, restricting or otherwise regulating impor .....

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in the format of the sanitary certificate attached to the Import Permit is unfounded in the statute and is ex facie arbitrary. The only requirement under the Import Permit is that the sanitary certificate should contain a declaration that the subject goods may be allowed as per the sanitary conditions contained in the sanitary certificate attached to the Import Permit. Therefore, no question arises as to issuance of the sanitary certificate in a particular format. 6. It is further contended by t .....

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ter analysis at the port of arrival. It was confirmed that the milk powder from India had been examined and found fit for preparation of the cheese. The sanitary certificate was also accompanied by a health certificate issued with respect to the factory where the subject goods were produced. Therefore, it is evident that the subject goods met the requirements set out in the Import Permit read with the sanitary certificate. Since the subject goods were produced with powdered milk, therefore the a .....

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o disclose anywhere the source of raw materials that were used in the preparation of the subject goods. He has placed reliance upon Form B- Application for permit to import Live-stock Products for Trading/Marketing attached to Notification S.O 655 (E) dated 07.07.2001. No local fresh milk from Egypt was used in preparation of the subject goods and that powdered milk exported from India was used in preparation of the same. He has placed reliance upon letter dated 28.11.2014 (affixed as Annexure P .....

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bject goods are purely vegetarian. The permit was issued on 26.05.2014 vide Permit Letter No. 0697/2014/DADF and the shipment containing subject goods arrived at the Nhava Sheva Port, Mumbai on 10.09.2014, therefore the recent notification i.e. Notification S.O. 2666(E) dated 17.10.2014 supersedes Notification S.O. 655 (E) dated 07.07.2001. In any event the recent notification does not prescribe any additional conditions that have not been fulfilled in the instant case. 8. It was lastly contende .....

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r referred to as SIP ) issued by the department of animal husbandry, dairying and fisheries. In this regard department had issued notification vide S.O. 655 (E) dated 07.07.2001 which has been further amended vide S.O. 2666 (E) dated 17.10.2014. The SIP needs to be issued by the official veterinarian of the exporting country complying with India s requirements listed in the sanitary certificate attached with the SIP. Egypt is a beef eating country; therefore, there is every possibility of using .....

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la, Head of Egyptian Veterinary Quarantine (for short GOVS ) addressed to Counselor, Indian Embassy, Cairo. The Egyptian authority shall not issue the health certificate as per Indian requirement for this particular consignment. However, the department asked the firm to submit the test report and animal rennet certification so that the department can further examine and take a view. The petitioner never asked the Egyptian authorities to issue the health certificate as per India s requirement. 10 .....

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om the stomach of calf after slaughtering the same which is banned in India. Similarly a certificate is required that the milk products have never been fed with feeds produced from internal organs, blood meals and tissues of ruminant origin as animal origin feed is not fed to the milking animals in India. Sanitary certification is also required by the official veterinarian since the conditions are fulfilled based on the practice adopted by the manufacturer, raw milk produced and countries contro .....

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nary drugs, mycotoxin, performed bacterial toxin of Staphylococcusaureus, Bacillus cereus, Clostridiumperfringes and Clostridium botulinum are required as per the Codex standard requirement as these bacteria affect human health. The FSSAI is mandated for import clearance from the domestic standard requirement after the products entered into India. Prior to the shipment from the foreign port, the consignment has to be certified by the exporting country meeting the sanitary requirement prescribed .....

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r the products entered into India. The FSSAI Act does not supersede the Livestock Importation Act. FSSAI is mandated for the import clearance from the domestic standard requirement after the products entered in India. Prior to the shipment from the foreign port, the consignment has to be certified by the exporting country meeting the sanitary requirements prescribed in the SIP stating that the product confirms to India s requirement. The petitioner is in violation of Section 25(1) (ii) & 25 .....

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Act, 1898. Hence, the quarantine officer, Mumbai has not issued No Objection which is one of the requirements for customs clearance of the goods in addition to the NOC from FSSAI. The sanitary conditions in the sanitary certificate have been evolved after following rigorous process of risk analysis by the technical experts of risk analysis committee to prevent ingress of exotic diseases through such import so as to protect the human and animal health as mandated under Livestock Importation Act, .....

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fter exchange of communications between the officials of the two nations it has been confirmed that the Egyptian Authority will not issue the health certificate as per the Indian requirement for this particular consignment. However, in future they assured to unify the health certificate module. 14. I have heard the learned counsel for the parties and have perused the material on record. 15. The Livestock Importation Act, 1898 was enacted to make better provision for the regulation of the importa .....

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se acts have been enacted for ensuring the security and precautionary measures to be ordained while importing goods into India. Before adverting to the facts of the case this court considers it important to reproduce the relevant provisions of these Acts. Section 25 of the FSSA reads as under: 25. All imports of articles of food to be subject to this Act.- (1) No person shall import into India - (i) any unsafe or misbranded or sub-standard food or food containing extraneous matter; (ii) any arti .....

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he standards laid down by the Food Authority under the provisions of this Act and the rules and regulations made thereunder. 17. Further, Section 3A of the LiveStock Importation Act, 1898 says: 3A. Power to regulate importation of live-stock products.- The Central Government may, by notification in the Official Gazette, regulate, restrict or prohibit in such manner and to such extent as it may think fit, the import into the territories to which the Act extends, of any live-stock product, which m .....

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10.2014. The notification S.O. 2666(E) specifically provides: S.O. 2666 (E).- In exercise of the powers conferred by clause (d) of section 2 and section 3A of the Live-stock Importation Act, 1898 (9 of 1898) and in supersession of notification S.O. 655 (E) dated the 07th July, 2001, except as respects things done or omitted to be done before such supersession….. Therefore, the aforementioned notification S.O. 2666 (E) itself provides a remedy to the petitioner in terms of applicability of .....

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e products sent regularly to lab examination…. Further, the packaging of the subject goods (affixed at annexure P-1 at page 180), show the green mark, which as per the petitioner reflective of the subject goods being vegetarian. The term Vegetarian as per the Food Safety and Standards (Packaging And Labelling) Regulations, 2011, has been defined as: 1.2: Definitions : 1.2.1: In these regulations unless the context otherwise requires: xxx xxx xxx 7. Non- Vegetarian Food means an article of .....

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13 (Tri.-Chennai) is that: Goods in question shall be liable for confiscation if it does not meet labeling requirement laid down by provision of statutes. However, even though the labeling of the subject goods has been so completed as per the necessary requirements, the green symbol indicative of the product being vegetarian has been affixed on the product by the concerned Egyptian authorities and has not been labeled in India. The petitioner has not been able to convince this Court so as to whe .....

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nications between the officials of the two nations, it has been confirmed that the Egyptian Authority will not issue the health certificate as per the Indian requirement for this particular consignment. However this does not leave the petitioner with any alternative or efficacious remedy. 22. Even if this court agrees with the arguments presented by the respondents the sight of the fact cannot be lost that the petitioner has made a substantial amount of investment in the subject goods which will .....

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