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Food Safety & Standards Authority of India Versus United Distributors Incorporation & Others

2015 (4) TMI 1117 - DELHI HIGH COURT

Import of food additive - YO-MIX 305 LYO 50 DCU” which is a blend of defined strains of lactic acid bacteria that is used for direct vat inoculation into milk for preparing yogurt and fermented milk products. - Non- compliance with the Packaging and Labelling Regulations - Ingredients list was not mentioned on the label - NOC refused that the safety of the product could not be assessed without knowing the mandatory labelling requirements as per the Packaging and Labelling Regulations - Whether a .....

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s in the "inclusive portion‟ of the definitions will have to 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 b .....

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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 to be also food, it would not have authority to regulate and monitor manufacture and processing, distribution, sale and import of food additives. The Act, takes within its ambit, food as well as food additives and the .....

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e 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.

Applicability of the Packaging and Labelling Regulations to the food additives - Held that:- 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 S .....

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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 products not marked and labelled in the manner prescribed cannot possibly apply to a manufacturers of a food product situated outside India. However, the same would apply to distribution, sale / exposure for sale and delivery of such products in India and before which is done, the said products would definitely be requi .....

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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 o .....

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belling is of the food business operator in India who imports the goods or otherwise deals with them first after their arrival in India and thus the said obligation can be permitted to be performed in India.

Vegetable oil/vegetable fat - Held that:- as per Regulation 2.7.4 of the Safety and Standards Regulations, under Chapter 2 thereof titled “Food Product Standards”, with respect to the chocolate, there is a prohibition against chocolates containing any vegetable fat other than coco .....

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chocolates. It thus appears that internationally, vegetable fat other than cocoa butter, though are permitted in chocolates including as filling in filled chocolates but only of certain type and subject to maximum limits of 5%of the total content. The appellate authority while taking the decision aforesaid, may consider the said aspect also.

Accordingly, the appellant authority is directed to in accordance with Section 18 and after considering all the relevant factors including those .....

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. for R-1. Ms. Sonia Sharma & Mr. V.C. Jha, Ms. Neha Sharma, Advs. for R-3. Mr. Sandeep Sethi, Sr. Adv. with Mr. Arjun Pall, Adv. for R-1. Mr. Akshay Makhija, Adv. for R- RAJIV SAHAI ENDLAW, J. 1. These two intra-court appeals though against different judgments (of the same learned Single Judge), 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 .....

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(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 authority to issue .....

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it petitioner and to which these proceedings pertain was of YO-MIX 305 LYO 50 DCU which is a blend of defined strains of lactic acid bacteria that is used for direct vat inoculation into milk for preparing yogurt and fermented milk products. The said product is a freeze-dried concentrated lactic culture comprising of lactobacillus bulgaricus and streptococcus thermophilus, along with sucrose and maltodextrin as carriers. According to the respondent No.1 / writ petitioner, the said product is a p .....

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ing the mandatory labelling requirements as per the Packaging and Labelling Regulations. 5. The respondent No.1 / writ petitioner represented that the said product was for industrial use only and not for retail sale and thus the labelling on the said product did not have to disclose the list of ingredients in terms of the Packaging and Labelling Regulations. Upon the representation not meeting with any success, the respondent No.1 / writ petitioner preferred the statutory appeal but which also w .....

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ellant 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 hum .....

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he provisions of the FSS Act or any Rule or Regulation made thereunder; (v) that it was the admitted case of the parties that the subject goods fall within Category 99 of Indian Food Code which includes substances added to food which are not for direct consumption as food and sub-category 99.6 whereof covers microorganisms and microbial preparations‟; (vi) that it was the contention of the respondent No.1 / writ petitioner that since the definition of yogurt in Regulation 2.1.12:1 of the S .....

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NOC, was applicable in respect of pre-packaged‟ foods; (ix) that as per Regulation 1.2.1:8 of the Packaging and Labelling Regulations defining pre-packaged or pre-packed food‟ read with Section 3(1)(f) of the FSS Act defining consumer‟, pre- packaged or pre-packed food means food which is ready for sale to persons and families purchasing and receiving food in order to meet their personal needs; (x) that thus the products though falling under the definition of food‟, mean .....

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authority specifying the labelling information for various kinds of packages of food consignment, the consignment in question substantially complied with the labelling requirements except that the name and address of the importer was not printed on the package; (xiii) that nutritional information in any event was inapplicable as the goods in question are lactic cultures which are to be used in manufacture of yogurt; (xiv) that the goods in question being for industrial use, the requirement, of .....

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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 con .....

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fore the FSS Act, the right to take action with respect to bad food was only under the law of tort and which was a very weak right; (e) that the appellant authority was constituted as the regulatory authority under the FSS Act and has the onus to protect the interests of the consumers; (f) that Regulation 1.2:7 of the Packaging and Labelling Regulations defines non-vegetarian‟ food as an article of food which contains whole or part of any animal including birds, fresh water or marine anima .....

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tribution, sale or exposing for sale or dispatch or delivery to any agent or broker for the purpose of sale any packaged food products which are not marked and labelled in the manner prescribed; thus pre- packaged or pre-packed food does not necessarily mean food ready for sale to consumer but would also include wholesale packages and which are defined in Regulation 1.2:12 of the Packaging and Labelling Regulations as containing a number of retail packages which are intended for sale, distributi .....

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ed 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 .....

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o be disclosed and the said requirement cannot be obviated by otherwise submitting the list of ingredients as the respondent No.1 / writ petitioner had done and which has been held by the learned Single Judge to be a sufficient compliance. 9. We had during the hearing enquired from the counsel for the appellant authority, whether an exporter of foods to India can be expected to comply with the provisions of FSS Act and the rules and regulations framed thereunder, besides with the laws, rules and .....

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any of the provisions of the Act or any rule or regulation made thereunder or any other Act and stated that there is no similar provision for export of goods from India. 11. We further enquired from the counsel for the appellant authority, whether not the deficiency, if any in compliance with the Packaging and Labelling Regulations or any other applicable regulations qua the goods imported in India, if capable of being made up, can be permitted to be made up in India before the release of the go .....

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o be not food, nothing in the Act or the rules and regulations framed thereunder would regulate the food additives and which will be contrary to the provisions and spirit of the Act. Attention was also invited to Section 19 of the Act providing that no article of food shall contain any food additive or processing aid unless it is in accordance with the provisions of the Act and the regulations made thereunder. On the basis thereof, it was argued that a food additive also has to follow all the la .....

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dards 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, .....

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e is distinct from food. We may in this regard notice that the contention of the respondent No.1 / writ petitioner before the learned Single Judge was of a food additive being not food and thus the Packaging and Labelling Regulations being not applicable to food additives. However, the learned Single Judge appears to have not accepted the said argument and held the Packaging and Labelling Regulations to be not applicable for the reason of the subject goods being not pre packaged or pre packed fo .....

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ejoinder: (a) contended that if food additive is held to be not food, the same will negate the Act; (b) relied on judgment dated 22nd September, 2014 of the Division Bench of the High Court of Calcutta in MAT No.1252/2014 titled Food Safety and Standards Authority of India Vs. Heartland Trading Company Pvt. Ltd. holding that the deficiency in affixing appropriate labels could not be rectified and the articles could be re- labelled, if at all, only by their foreign manufacturer that had originall .....

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August, 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 product .....

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d 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 submissions and the counsel for the appellant authority has on 12th March, 2015 also handed over copy of the judgment dated 4th February, 2014 of the Division Bench of the High Court of Kerala in W.A. No.1317/2014 titled Authorized Officer, Cochin Sea Port and Airport Food Safety and Standards Authority of .....

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the controversy which has unfolded and the rival contentions, in our view the following issues arise for adjudication:- A. What is the nature of the subject goods; whether they are a food or a food additive; B. Whether a food additive is also a food. C. If the goods are a food additive, distinct from food, whether the Packaging and Labelling Regulations are applicable thereto. D. If the Packaging and Labelling Regulations are applicable, whether the subject goods comply therewith. E. Whether th .....

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so a food. 24. The definitions of food and food additive in Sections 3(1)(j) & (k) of the Act are as under: 3. Definitions:-(1) In this Act, unless the context otherwise requires- (j) food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic dr .....

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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 impro .....

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manufacture, preparation or treatment.... . It would thus be noticed that the definition, after providing that food is any substance intended for human consumption, includes within its fold certain items, some of which are also separately defined, but does not mention a food additive. 27. Per contra, Food Additive, in Section 3(1)(k) is defined as any substance not normally consumed as a food itself or used as a typical ingredient of food.... and which is intentionally added to food for manufac .....

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in the inclusive portion‟ of the definitions will have to satisfy the essential test. 30. Justice G.P. Singh in Principles of Statutory Interpretation, 13th Edition (2012) has authored that a definition in the form mean and include will be considered as exhaustive and will embrace only what is comprised within the ordinary meaning of the means part together with what is mentioned in the includes part of the definition. Reference is made to Mahalaxmi Oil Mills Vs. State of A.P. (1989) 1 SCC .....

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, 2002 of input as, meaning goods used in or in relation to manufacture of final product whether 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 .....

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fic 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 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 foo .....

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d 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. 35. That brings us to the fear expressed by the counsel for the appellant authority, of not treating food additives as food, taking the food additives outside the purview of the FSS Act. 36. The aforesaid argument of the counsel for the appellant authority, in our view, is based on a complete misconception of the scheme of th .....

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sion in the definitions Section 3 of the definition of food additive is indicative of the expressions laws relating to food , standards of articles of food , regulated manufacture....of food and ensure availability of safe and wholesome food in the preamble and control the food industry in Section 2, taking within the ambit of the Act, food additives also. Section 4 of the Act provides for establishment of the FSS Authority of India i.e. the appellant authority herein to exercise the powers conf .....

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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) s .....

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takes within its ambit, food as well as food additives and the two being different, makes separate provisions with respect to two. However, the context in which food is used in some of the provisions of the Act, take within their ambit food additives also. What the appellant authority is however wanting to do is to make the provisions of the Act made in context of foods, applicable to food additives also and which cannot be permitted. 39. This becomes further evident from Section 19 of the Act w .....

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nter alia of power whereunder the Packaging and Labelling Regulations have been framed, prohibits sale of any packaged food products which are not marked and labelled in the manner as specified by the Regulations. A question would arise whether the said prohibition and the power to make Regulations for packaging and labelling extends also to food additives - whether the word food therein would also include food additives . The word sale is defined in Section 3(1)(zr) as sale of any article of fo .....

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or Rules or Regulations made thereunder. Since the Act contains provisions with respect to food additives, it follows that the prohibition against import into India shall be applicable to food additives unless the same are in accordance with 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 Chap .....

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ove 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 appellant authority to apply the said Regulations to food additive with which .....

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ufacture whereof it is used would classify as veg. or non-veg., he was nonplused. 45. Per contra, the Safety and Standards Regulations made under Section 16 read with Section 92(2)(e) of the FSS Act, in addition to prescribing the safety and standards of food products also specifically deal with food additives. Chapter 2 thereof prescribes the standard of different food products, mainly milk and milk products, fats, oils and fat emulsions, fruit and vegetable products, cereal and cereal products .....

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said Regulations prescribing the use of food additives in food products, in Table 14 thereunder listing food additives for use in milk products, under the sub-heading acidifying agents also lists lactic acid together with the quantities thereof which can be used in different kinds of food, cheese, cheese spread, yoghurt, evaporated milk, sweetened condensed milk, butter, milk fat, milk powder, cream powder, ice cream, kulfi, casein products, whey powder, paneer. We may mention that the maximum .....

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els 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 R .....

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nufacturer of food products not marked and labelled in the manner prescribed cannot possibly apply to a manufacturers of a food product situated outside India. However, the same would apply to distribution, sale / exposure for sale and delivery of such products in India and before which is done, the said products would definitely be required to be labelled in the manner prescribed. However, the responsibility for such labelling cannot be of the foreign manufacturer of such food products and we s .....

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easons which prevailed with the learned Single Judge, dismiss this appeal and the appellant authority itself, which is the framer of the Regulations, having misapplied the same, is burdened with costs of ₹ 20,000/-. LPA No.711/2014 49. This appeal is preferred against the judgment dated 20 th August, 2014 in W.P.(C) No.3708/2014 preferred by the respondent No.1 / writ petitioner (respondent No.2 is Union of India and respondent No.3 is the Additional Commissioner of Customs). The said writ .....

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s to, after the respondent No.1 / writ petitioner had put the requisite labels thereon, clear the said consignment, subject to complying with other requirements. 50. The learned Single Judge, in the impugned judgment, found / observed / held: (i) that the respondent No.1 / writ petitioner had imported assorted chocolates manufactured by Chocolatier Guylian N.Y.; these chocolates which arrived at ICD, Dadri, on 3rd January, 2013, were essentially of twenty different types; (ii) that while four ty .....

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ting 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 an .....

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furnished a certificate from the manufacturer giving the details of the manufacturing and the expiry dates in respect of each of the consignment; (viii) that thus the appellant authority could satisfy itself that the labelling put by the respondent No.1 / writ petitioner correctly reflected the manufacturing date on the packages; (ix) that the purpose of providing labels could not be lost sight of- the object of labelling the packaged products is to ensure that relevant information regarding the .....

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to the respondent No.1 / writ petitioner to enable it to affix the necessary labels on those goods and the appellant authority was directed to ensure that the goods in question were cleared, once the necessary labels had been affixed; (xi) that the other eight types of chocolates were filled chocolates‟ i.e. a shell made with chocolate with a filling inside; (xii) that the chocolate shell itself did not contain any vegetable fat; (xiii) however, vegetable fat was found in the filling and o .....

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; (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 .....

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(b) that a filled chocolate is also a chocolate and therefore should comply with Regulation 2.7.4 of the Food Safety and Standards Regulations; (c) that admittedly filling in the said chocolates contain vegetable fat in excess of the prescribed limit; (d) that Regulation 2.7.4 supra prohibits use of vegetable fat in excess of prescribed limit-thus, the vegetable fat in excess of the prescribed limit cannot be permitted in the filling of the chocolate also; (e) that the vegetable oil / vegetable .....

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oil was in the filling part of the filled chocolate and the Safety and Standards Regulations and Codex Standard were silent on the use of vegetable fat in the filling part of the filled chocolate and had also issued a clarification dated 14th November, 2014 to the effect that edible vegetable oils, fats including partially hydrogenated vegetable oils were considered as filler material in filled chocolate; (II) that the power of the appellant authority to issue such clarification had been taken .....

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into the hands of the consumers and not at the time of import; (VI) that the appellant authority had undertaken to put suitable stickers to comply with the requirement; (VII) that vegetable fats have no issue of safety, as they are edible fats commonly consumed-they are used and permitted to be used to reduce dependency on cocoa-use of vegetable fats is also known to improve product hardness, enhance glossiness and prolong the shelf life of chocolates; (VIII) that the appellant authority did not .....

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so 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 c .....

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Regulations. 58. We are, with respect, unable to concur. 59. The object of labelling, as per the counsel for the appellant authority also, vis-à-vis the imported goods is to enable the appellant and other authorities to know what the imported goods are and to, if desire to satisfy themselves as to the veracity of the declaration on the label, carry out the requisite tests. 60. We have wondered that if the appellant authority is willing to accept the declaration on the label affixed by th .....

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aking up the said deficiency. No sanctity to the process of affixing label prior to receipt in India of the goods has been explained. Labels, in compliance of other laws viz. as to maximum retail price etc. are in any case put in India, on the imported goods. 61. As far as the reasoning accepted by the Calcutta High Court, of there being no provision in the FSS Act permitting making up of the deficiency, is concerned, Section 23 which is the relevant provision, in Sub-Section (1) thereof contain .....

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. A food 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 .....

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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, in case of imported foods, the obligation to comply with the provisions of the Act and the Regulations thereunder with respect to labelling is of the food business operator in India who imports the goods or otherwise deals with them first after their arrival in India and thus the said obligation .....

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, with respect to the chocolate, is as under: 2.7.4: Chocolate Chocolate means a homogeneous product obtained by an adequate process of manufacture from a mixture of one or more of the ingredients, namely, cocoa beans, cocoa nib, cocoa mass, cocoa press cake and cocoa dust (cocoa fines/powder), including fat reduced cocoa powder with or without addition of sugars, cocoa butter, milk solids including milk fat. The chocolates shall not contain any vegetable fat other than cocoa butter. The materi .....

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ore of cocoa nib, cocoa mass, cocoa press cake, cocoa powder including low fat cocoa powder with sugar and cocoa butter. Plain Covering Chocolate-same as plain chocolate but suitable for covering purposes. Blended Chocolate means the blend of milk and plain chocolates in varying proportions. White chocolate is obtained from cocoa butter, milk solids, including milk fat and sugar. Filled Chocolates means a product having an external coating of chocolate with a centre clearly distinct through its .....

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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 .....

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ded Chocolate 1. Total fat (on dry basis) per cent by weight. Not less than 25 25 25 25 25 25 2. Milk fat (on dry basis) Per cent by weight. Not less than 2 2 - 2 - 3. Cocoa solids (on Moisture-fee and fat free basis) per cent by weight Not less than 2.5 2.5 12 12 - 3.0 4. Milk Solids (on Moisture-fee and fat- free basis) per cent by weight Not less than/not more than 10.5 10.5 - 10.5 1 - 9 5. Acid insoluble ash (on moisture fat and Sugar free basis) per cent by weight Not more than 0.2 0.2 0.2 .....

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e that meets the requirements 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: .....

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e 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 chocolate. The requirement in each of the said types of chocolates is de hors the prohibition qua vegetable fat/oil other than Cocoa Butter - the said requirements cannot dilute the absolute prohibition against chocolates containing any vegetable fat/oil other than Cocoa Butter but in the general .....

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as to require the appellant authority to ban the same in chocolate, the said harm would still be caused by the vegetable fat / oil filled inside the chocolate rather than being homogeneously mixed with the other ingredients of the chocolate in its composition. (E) A chocolate with the filling of vegetable fat would also be sold and marketed as chocolate only and nothing else and a buyer/consumer thereof is likely to assume that the same in accordance with Regulation 2.7.4 does not contain any v .....

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n against chocolate containing vegetable fat/oil other than Cocoa Butter does not extend to anything contained inside a chocolate covering / shell, it would mean that nearly anything, even non-vegetarian products, can be contained‟ inside the chocolate. (H) Had the legislative intent been to exclude vegetable fat/oil other than Cocoa Butter, only from the mixture/composition constituting chocolate, Regulation 2.7.4 would have while defining the contents of the mixture excluded vegetable fa .....

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t 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 i .....

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e so, we fail to understand as to why the consumption thereof as a filling inside a chocolate should be barred. (b) At least some material available on the internet indicates that the prohibition against use of vegetable fats other than cocoa butter in chocolate all over the world had more to do with maintaining the quality, flavor and taste of chocolate and for the benefit of the cultivators of the cocoa bean, than for the harmful effects of vegetable fats, though mention at places is also made .....

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d blooming‟ of chocolates, increase shelf life of chocolates and add to the sheen/gloss of the chocolate; and to solidify the chocolate, all the said factors are beneficial to the distribution and sale of chocolate in India with its high climatic temperatures and vast distribution network requiring long shelf life. (e) Vegetable fats being considerably cheaper than cocoa butter, also help reduce the price of chocolate. (f) The High Court of Andhra Pradesh in Sanka Ravi Gopal Vs. The State .....

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nated vegetable fat and that it was only the chocolate portion which should not contain vegetable fats. (The Prevention 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 noti .....

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ke 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 clause (c) of subsection (1) thereof permits a call on a persisting uncertainty, to be taken and in the interregnum make such arrangements as maybe appropriate. We accordingly direct the appellant a .....

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nd practices. Our research shows that the Guidance on Cocoa and Chocolate Products Regulations, 2003 published by the Food Standards Agency of the United Kingdom, in clause 7 thereof states that the Regulations allow the use of specified vegetable fats other than cocoa butter upto a maximum on five percent in the preparation of chocolate products including in filled chocolates. It thus appears that internationally, vegetable fat other than cocoa butter, though are permitted in chocolates includi .....

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tter. (II) At least two other High Courts besides the Learned Single Judge of this Court having taken a view that prohibition against vegetable fats in chocolates does not apply to a filling inside a chocolate. We are of the view that for the said period of six months, the view taken by the Learned Single Judge in this regard be allowed to prevail. 71. As far as the reliance by the respondent No.1 / writ petitioner on the clearance earlier accorded to chocolates filled with vegetable fat of M/s .....

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ve 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 Au .....

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d cannot in its red-tapism make the goods redundant and of no value. The appellate authority to in future deal with such request in right earnest and without any delays. We however do not deem it appropriate to render any conclusive finding in this regard and leave it open to the respondent No.1 / writ petitioner to, if so desires take appropriate action against the appellant authority for the losses, if any caused to the appellant authority. 73. LPA No.711/2014 is accordingly partly allowed to .....

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th respect to foods only and others are with respect to Food Additive only, yet in context of some other provisions, food additive are included in foods. D. Section 23 of the FSS Act titled Packaging and Labelling of Foods is with respect to food only and not with respect to food additive. E. Axiomatically the Packaging and Labelling Regulations made in exercise of power under Section 23 are with respect to foods only and not applicable to food additive. F. The appellate authority, if so deems n .....

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