TMI Blog2015 (4) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy the essential test. It would thus follow that non-mentioning of food additive in the definition of food, has to be interpreted as food additive not falling within the definition of food. A substance which is not normally consumed as a food by itself or used as a typical ingredient of a food and which may be a food additive, cannot be a food as only those substances which are intended for human consumption can be food. Merely because a food additive may fall within the expression and includes any substance used into the food during its manufacture, preparation or treatment” within the inclusive part of the definition of food will not make a food additive food because a food additive fails to satisfy the crucial part of the definition of food i.e. “intended for human consumption”. Similarly, because a food additive is added for technological purpose in the manufacture, processing, packaging etc. of food and becomes a component of or affects the characteristics of such food would also not make it a food because a food additive by itself is normally not consumed as a food. The appellant authority is thus clearly wrong in its assertion that without holding food additives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abelling being fulfilled by the person who distributes, sells, dispatches or delivers the said imported goods in India. Therefore, insistence on reshipping of the said goods to the foreign manufacturer thereof does not serve any purpose. It would also mean, reliance being placed on the declaration on the label by a foreigner, rather than an Indian and which is unacceptable. Non- compliance with the Packaging and Labelling Regulations - NOC refused by the appellant authority - curability of the defect - Held that:- this has already been decided by us in the other appeal, though ultimately finding that the question did not arise for adjudication therein, nevertheless expressed our view that the FSS Act and the Regulations made thereunder cannot be binding on a foreign manufacturer or supplier of food and considering the purpose of labelling, the defect/deficiency in labelling in imported goods is curable. However, we fail to see the harm if any in allowing any defect/deficiency in labelling being permitted to be made up, in respect of imported goods, in India. Also no prohibition thereagainst in the Act or any Regulations is found. Therefore, in case of imported foods, the obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), but both concerning interpretation of the provisions of The Food Safety and Standards Act, 2006 (FSS Act) and Rules and Regulations made thereunder and filed at or about the same time, were taken up together for hearing. LPA No.659/2014. 2. This appeal is preferred against the judgment dated 13th August, 2014 in W.P.(C) No.2644/2014 filed by the respondent No.1 / writ petitioner (respondent No.2 is Union of India). The said writ petition was filed impugning the order of the appellant authority holding the consignment of Lactic Culture‟ imported by the respondent No.1 / writ petitioner to be non- compliant with the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (hereinafter referred to as Packaging and Labelling Regulations ) and thus refusing the No Objection Certificate (NOC) to enable the respondent No.1 / writ petitioner to have the said consignment released from the Customs Authorities. The learned Single Judge by the judgment impugned in this appeal held the provisions of the Packaging and Labelling Regulations, for the reason of non-compliance wherewith the NOC was refused, to be not applicable and hence directed the appellant autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list of ingredients. Thereafter, the writ petition from which this appeal arises was filed. Needless to state that the appellant authority contested the writ petition. 6. The learned Single Judge, in the impugned judgment, has found / observed / held:- (i) that Section 23 of the FSS Act mandated that packaged food products be labeled or marked in the manner prescribed by the Packaging and Labelling Regulations; (ii) though the expression food products is not defined under the FSS Act but the definition of food in Section 3(1)(j) of the FSS Act is couched in wide terms to mean any substance which is intended for human consumption including any substance used into the food during its manufacture, preparation or treatment; (iii) that the goods imported by the respondent No.1 / writ petitioner being intended for use in preparation of yogurt, would fall within the wide definition of expression food‟ and its packaging and labelling would require to be compliant with the Packaging and Labelling Regulations; (iv) Section 25(1)(iii) of the FSS Act prohibits import of any article of food in contravention of the provisions of the FSS Act or any Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which are to be used in manufacture of yogurt; (xiv) that the goods in question being for industrial use, the requirement, of logo indicating whether the goods are vegetarian or non-vegetarian , was also inapplicable; (xv) that thus, irrespective of the non-applicability of Regulation 2.2.2:2 of the Packaging and Labelling Regulations, the labelling of the goods in question provided sufficient information and the respondent No.1 / writ petitioner in addition had also furnished the detailed product description of the goods and the composition, properties and physical / chemical specifications as well as microbiological specifications; (xvi) that all the aforesaid was sufficient for the appellant authority to test whether the goods in question conform to the description. 7. Aggrieved from the aforesaid, this appeal was preferred. Though the same was entertained, but the interim stay sought of the judgment of the learned Single Judge refused. The counsel for the appellant authority, on 26th September, 2014 informed that in inspection pursuant to the directions of the learned Single Judge, the contents of the consignment were not found to be in conformi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defining pre-packaged or pre-packed food‟ also provides that the expression package wherever it occurs shall be construed as package containing pre-packed food articles, again indicating that pre-packaged or pre-packed food includes wholesale packages; (k) that Section 3(zc) of the FSS Act defines manufacture‟ as a process or adoption or any treatment for conversion of ingredients into an article of food, which includes any sub- process, incidental or ancillary to the manufacture and Section 3(zd) defines manufacturer‟ as a person engaged in the business of manufacturing any article of food for sale and includes any person who obtains such article from another person and packs and labels it for sale; that a combined reading of the said provisions with the definition of consumer in Section 3(f) of the FSS Act leaves no manner of doubt that the labelling requirements are for manufacturer of food also, whether the said food is for direct sale to the consumer or to an intermediary; (l) that Regulation 2.2.2 of the Packaging and Labelling Regulations requires inter alia the list of ingredients to be disclosed and the said requirement cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis thereof, it was argued that a food additive also has to follow all the laws, rules and regulations. It was also contended that if food additive was held to be not food, the provisions of Section 25 of the Act with respect to import of articles of food would also not be applicable to food additives. Similarly, it was stated that if such a view was to be taken, the appellant authority as well as other agencies would cease to have jurisdiction under Sections 16 18 of the Act qua food additives. Attention was also invited to Regulation 2.1.12 of the Safety and Standards Regulations specifically dealing with Fermented Milk Products and providing the parameters therefor including for Yoghurt and it was contended that without the subject consignment / goods complying with the Packaging and Labelling Regulations, the appellant authority would be unable to test, whether the said parameters were met or not. It was also argued that the respondent No.1 / writ petitioner was hesitating to make the declaration as required by the Packaging and Labelling Regulations, as it will in the said declaration have to declare the harmful bacteria contained in the goods. It was yet further argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust, 2014 of the Division Bench of this Court in W.P.(C) No.3668/2013 titled Lok Jagriti Vs. Union of India laying down that what is prohibited under the FSS Act and the rules and regulations framed thereunder, even if permitted by CODEX Alimentarius will still be regarded as prohibited in terms of the law of India (we may add that CODEX Alimentarius is a collection of internationally recognized standards, codes of practice, guidelines and other recommendations relating to foods, food production and food safety). 18. The senior counsel for the respondent No.1 / writ petitioner pointed out that Heartland Trading Company Pvt. Ltd. supra was a case of edible grade refined oil with respect whereto, specific regulations exist and not relating to food additives and that Sarad Kumar Bohra supra was a case of sugar confectionary which also is a food and not a food additive. It was further contended that on the contrary, the present case is not concerned with a pre-packed food but with a food additive and particularly described in the Safety and Standards Regulations as a food additive and which also lay down the parameters thereof. 19. Both counsels have also since filed written s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. (k) food additive means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include contaminants or substances added to food for maintaining or improving nutritional qualities. 25. In our opinion a food additive, is distinct from, and is not a food. 26. Food, in Section 3(1)(j) is defined as any substance, .....which is intended for human consumption.... . The definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contained in the final product or not and including lubricating oils, paint, packing material etc. It was held that the expression goods used in or in relation to manufacture of final products was the crucial requirement of the definition and anything mentioned in the inclusive part of the definition, till it also fulfilled the requirement of the crucial part of the definition, would not fall within the definition of input . The legislative intention was held to be that the inputs falling in the inclusive part of the definition must have nexus with the crucial part of the definition. It was further held that in each case it has to be established that input mentioned in the inclusive part is used in or in relation to the manufacturing of the final product and that the definition has to be read in its entirety. It was yet further held that where the definition is in two parts namely the specific part and the inclusive part, both the parts are required to be satisfied. 33. To the same effect are Board of Revenue Vs. A.M. Ansari (1973) 3 SCC 512 (Para 26) and The State of Himachal Pradesh Vs. Maharani Kam Sundari MANU/HP/0062/1984 (DB) (Para 20). 34. Thus, a substance whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nels, in Section 13(3)(a) provides for establishment of a panel on food additives, flavourings, processing aids and materials in contact with food. Section 16(1) prescribes the duty of the appellant authority to regulate and monitor the manufacturing, processing and import of food so as to ensure safe and wholesome food. The definition of food in Section 3(1)(j) is unless the context otherwise requires . The context in which the word food is used in Section 16(1) takes within its ambit food additives also which are intentionally added in the manufacture, processing etc. of food and which thus necessarily play a vital role in ensuring safe and wholesome food. Without regulating and monitoring food additives which go into manufacture and processing of food, safe and wholesome food cannot be ensured. Not only so, Section 16(2)(b) specifically provides for the appellant authority to by Regulations specify the limits for use of food additives and the context in which the word food is used in other clauses of Section 16(2) would also take within its ambit food additives. 38. The appellant authority is thus clearly wrong in its assertion that without holding food additives to be also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the provisions of the FSS Act or any Rule or Regulation made thereunder. 42. Since the Act contains provisions with respect to food additives, the enforcement mechanism under Chapter VII of the Act, the provision relating to offences and penalties under Chapter IX of the Act and the adjudicatory mechanism provided under Chapter X of the Act would be applicable to food additives also. 43. That brings us to the third issue i.e. of the applicability of the Packaging and Labelling Regulations to the food additives. 44. The said Regulations have been made in exercise of powers under Section 23 of the FSS Act read with Section 92(2)(k) of the FSS Act. Section 92(2)(k) empowers the appellant authority to make Regulations under Section 23. We have hereinabove held that the context in which the word food is used in Section 23, does not allow inclusion of food additives therein. It thus follows that the Packaging and Labelling Regulations do not apply to food additives. A reading of the Packaging and Labelling Regulations also shows that the same can possibly have no application to food additives. This also becomes evident from the anomalies arising from the intent of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... felt. As aforesaid, Section 16 of the FSS Act vests wide powers in the appellant authority to make Regulations to ensure safe and wholesome food. If the appellant authority feels that to ensure safe and wholesome food, any Regulations qua packaging and labelling of food additives are also required to be made, the appellant authority under Section 16 read with Section 92(2)(e) would be entitled to do so. Not only so, Section 19 read with Section 92(2)(h) also enables the appellant authority to make Regulations qua additives to be used in the manufacturing of food. However the appellant authority cannot be permitted to apply to food additives, Packaging and Labelling Regulations made under Section 23--for food, and application whereof to food additives would lead to ridiculous results. 47. In the light of the above, issues D and E culled out by us hereinabove do not arise for adjudication. Therefore, without intending to return any conclusive finding on the said aspect we may only observe that the whole purpose of labelling is to make the persons dealing with the product aware of the nature and character thereof. The prohibition in Section 23(1) against the manufacturer of food pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D, Dadri, on 3rd January, 2013, were essentially of twenty different types; (ii) that while four types of the said chocolates were cleared, the appellant authority vide letter dated 5th May, 2014 refused to grant NOC to the remaining sixteen types of chocolates on the ground that eight types of chocolates were non-compliant with the Packaging and Labeling Regulations for not providing the date of manufacture and date of expiry on the label and the balance eight types were found to be having vegetable fats and thus non-compliant with Clause 2.7.4 of the Safety and Standards Regulations prohibiting any vegetable fat except cocoa butter in chocolate; (iii) that the Packaging and Labelling Regulations required the label to indicate the date of manufacture or packaging of the commodity, even where the best before or use by date‟ is mentioned on the label; (iv) that admittedly the labels on goods in question though indicated the best before date but did not mention the date of manufacturing; that thus the said eight types of the chocolates did indeed not comply with the Packaging and Labelling Regulations; (v) however, it was also the contention of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocolate shell and not to the filling contained in the chocolate shell; (xv) that even per Clause 2.2.2 of Codex Alimentarius Standard for Chocolate and Chocolate Products, the centre of the chocolate is distinct in composition from the external coating; (xvi) that the standards prescribed for chocolate, could not be applied to the filling therein as the filling is distinct from the outer shell; (xvii) that the appellant authority also had accepted this view in respect of consignments of chocolates imported by others; (xviii) accordingly, it was directed that the said chocolates be also cleared, subject to the respondent No.1 / writ petitioner complying with the other requirements. 51. The appeal was entertained though no interim stay of the order of the learned Single was granted. 52. It was the contention of the counsel for the appellant authority: (a) that the learned Single Judge has erred in holding that the defect in labelling could be rectified--reliance was placed on the judgments supra of the other High Courts holding the same to be not curable; (b) that a filled chocolate is also a chocolate and therefore should comply with Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shelf life of chocolates; (VIII) that the appellant authority did not comply with the order of the learned Single Judge, causing huge loss to the respondent No.1 / writ petitioner as the goods expired and the respondent No.1 / writ petitioner had to abandon the goods. 54. The counsel for the Customs contended that though the Customs Authorities in compliance with the judgment of the learned Single Judge were ready to release the goods but the respondent No.1 / writ petitioner did not come forward and did not pay any duty and no NOC from the appellant authority also was produced. 55. As would be obvious from the aforesaid, the controversy in this appeal is twofold. The first is with respect to the curability of the defect, if any in labelling and the second is with respect to vegetable fat. 56. As far as the first aspect is concerned, we have already in our decision in the other appeal, though ultimately finding that the question did not arise for adjudication therein, nevertheless expressed our view that the FSS Act and the Regulations made thereunder cannot be binding on a foreign manufacturer or supplier of food and considering the purpose of labelling, the defect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood business operator is defined in Section 3(1)(o) as a person by whom the business is carried on or owned and is responsible for ensuring compliance with the provisions of the FSS Act and the Rules and Regulations made thereunder. As aforesaid, the FSS Act cannot and does not have extra-territorial operation, i.e. outside India. Thus, a food business operator, in relation to imported goods can be only a person in India who has imported the said goods and who distributes or sells the same in India and cannot be the foreign manufacturer or supplier or exporter of such goods. Section 25 also, prohibits import into India of any unsafe or misbranded or substandard foods or in contravention of the provisions of the Act or any Regulation made thereunder. We can understand, that non-compliance of some of the packaging regulations to ensure safety of goods may not be rectifiable as the damage from non-compliant packaging may already have been done. However, we fail to see the harm if any in allowing any defect / deficiency in labelling being permitted to be made up, in respect of imported goods, in India. We find no prohibition thereagainst in the Act or any Regulations. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include flour confectionery pastry and biscuit products. The coating shall be of chocolate that meets the requirements of one or more of the chocolate types mentioned above. The amount of chocolate component of the coating shall not be less than 25 per cent of the total mass of the finished product. Composite Chocolate-means a product containing at least 60 per cent of chocolate by weight and edible wholesome substances such as fruits, nuts. It shall contain one or more edible wholesome substances which shall not be less than 10 per cent of the total mass of finished product: Provided that it may contain artificial sweeteners as provided in regulation 3.1.3 and label declaration as provided under regulation 2.4.5 (24, 25, 26, 28 29) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011: Provided further that in addition to the ingredients mentioned above, the chocolate may contain one or more of the substances as outlined below, under different types of chocolates. (a) edible salts. (b) spices and condiments. (c) permitted emulsifying and stabilizing agents. (d) permitted sequestering and buffering agents. The product may con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of one or more of the chocolate types mentioned above has held that the prohibition against chocolate not containing any vegetable fat/oil other than Cocoa Butter is only in the composition of the chocolate and does not prohibit vegetable fat/oil other than Cocoa Butter from being filled inside a chocolate shell/covering. 66. We however have the following reservations with respect to the aforesaid interpretation by the learned Single Judge of Regulation 2.7.4 supra: (A) The prohibition in the definition of chocolate, against the same containing any vegetable fat/oil other than Cocoa Butter is worded in very wide language and the expression shall not contain.....any vegetable fat/oil would include within its ambit vegetable fat/oil being contained inside the chocolate though not in the composition of chocolate. (B) The prescription in the description of filled chocolate is that the coating/shell thereof shall be of chocolate that meets the requirement of one or more of the chocolate types mentioned above . The chocolate types mentioned above are milk chocolate, milk covering chocolate, plain chocolate, plain covering chocolate, blended chocolate and white choco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd contain would not have been necessary. (I) The word contain , in Shorter Oxford Dictionary, 6th Edition is explained as, having in it , include as a part of the content‟, comprise , have inside itself‟ and would take within its ambit vegetable oil filling inside the chocolate shell. (J) The chocolate content in a filled chocolate can be as low as 25%, leaving as much as 75% to comprise of other vegetable fat which though is not deemed good enough for being in the homogeneous mixture comprising chocolate but is permitted to be concealed inside chocolate, thereby misleading the consumers. (K) In comparison, a composites chocolate, described after filled chocolate, is required to have at least 60% content of chocolate and remaining of other substances. (L) We have not been able to fathom as to what difference it makes whether the vegetable oils / vegetable fats other than cocoa butter are contained in homogeneous product constituting chocolate or in a cavity inside the said chocolate. It is not the argument that the qualities / characteristics / effect of vegetable oil / vegetable fat other than cocoa butter change upon being mixed with oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evention of Food Adulteration Act, 1954 whereunder the Prevention of Food Adulteration Rules, 1955 were framed stand repealed vide the FSS act. It appears that the appellate authority has merely copied the standard of chocolate from the PFA rules supra which were drafted when all the chocolate producing nations had prohibited the chocolates from containing vegetable fat and without noticing the change brought about in the said nations in the year 2003). (g) With respect to a matter of safety standards of food items consumed all over the country, it is expedient that the standards are understood as the same all over the country and there is no inconsistency. 68. We have hereinabove recorded the thoughts which come to our mind. The subject is required to be dealt with by the experts and a body of which, i.e. the appellant authority has been established and it is not for us to take a final call on the matter. Though we could have in exercise of powers under Article 226 of the Constitution of India also directed the appellant authority to so decide but we find that section 18 of the FSS act containing the general principles to be followed in administration of the Act, also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g NOC to chocolates containing vegetable oil / vegetable fat, even as a filling, if otherwise the same is prohibited under the Regulations. There can be no estoppel against a statute. Even otherwise, a past mistaken view of the appellant authority cannot be held to bind the appellant authority. Similarly, an administrative clarification issued cannot override a statutory regulation. Supreme Court, in Vishal Properties Pvt. Ltd. Vs. State of U.P. (2007) 11 SCC 172 has held that no Authority can be directed to repeat the wrong illegal action done earlier and a mistake cannot be perpetuated on the ground of discrimination and hardship. To the same effect is, Maharishi Dayanand University Vs. Surjit Kaur (2010) 11 SCC 159. Recently in UOI Vs. Ashok Kumar Aggarwal 2013(14) SCALE 323 it was also reiterated that an Authority cannot issue executive instructions in contravention of statutory rules. 72. As far as the argument of the counsel for the respondent No.1 / writ petitioner of delays is concerned, we need only to observe that we do indeed find considerable delay on the part of the appellant authority in dealing with the application of the respondent No.1 / writ petitioner for N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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