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TMI Blog2018 (1) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mundra port, for which 8 Bills of Entries were filed in July 2017. The cargo declared was "Grain De Cotton (Cotton Seed used for cattle /animal feed consumption)" valued at approximately 6.80 crores (rounded off) imported from Benin. These consignments contain cotton seeds weighing 35,34,444 kgs. packed in bags. The petitioners produced copies of certificate issued by the Ministry of Agriculture, Benin that the seeds are not fit for human consumption. Since the import of cotton seeds is freely allowed as per the Import Export Policy, the petitioners requested to the Customs authorities to clear the same on payment of prescribed duties. The petitioners had made similar imports in the past and cleared the same without any resistance. It appears that this time round, the Ministry of Agriculture got involved and raised objections to the clearance of the cargo on the basis of the Plant Quarantine Order (Regulation of Import into India), 2003 (hereafter to be referred as "the PQ Order"), issued under the exercise of powers granted under the Destructive Insects and Pests Act, 1914 ("the said Act" for short). After detailed correspondence and failing to persuade the respondents to clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations and this is noncompliance of the regulations. Therefore, consignments are liable for deportation or destruction at the cost and risk of the importer as per clause 3(16) of Chapter-II of Plant Quarantine (Regulation of import into India) Order, 2003." 3.1 Pursuant to the said order, a further order dated 18.11.2017 came to be issued conveying to the petitioners to deport the goods, failing which the same would be destroyed at the cost of the petitioners. At that stage, the present petition came to be filed, in which the petitioners have challenged the said orders dated 16.11.2017 and 18.11.2017. 4. Learned Counsel Shri Kamal Trivedi led the arguments on behalf of the petitioners. He contended that the objections of respondent No.2 are not sustainable. Counsel took us through the provisions of the said Act and the PQ Order as well as Schedules-V and VII contained in the said Order to contend that the restrictions imposed in Schedule-V would apply only for import of cotton seeds for sowing purpose. Cotton seeds imported for animal feed would fall under Schedule-VII and the procedure contained therein only has to be followed. He pointed out that the definition of term "Anim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Ministry of Agriculture was not at that time taken into confidence and that therefore, such imports of the past would not act as a precedent against the Ministry. 8. In the present group of cases, the petitioners have imported cotton seeds in seeds form, but claiming that the same are meant only for animal feed consumption. In fact, further contending that the cotton seeds are not capable of being used for sowing purposes. According to the petitioners, the cotton seeds used for animal feed is generally of inferior quality as compared to those used for sowing. The germination rate in the former case would be extremely low making it completely inviable for anybody to use the same for sowing. In fact, due to passage of time, since their import, the germination rate would further go down and therefore, seeds cannot be put to any use other than for animal feed consumption. 9. The statutory provisions applicable in the case need to be examined in light of these facts. In order to prevent introduction into the country and transport from one State to another of any insect, fungus or other pest, which may be destructive to crops, the said Act was enacted. Section 3 of the Act pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch restrictions and conditions specified in this Chapter. (2) Every consignment of plant species herein specified in Schedule-V, VI and VII shall be accompanied by an original Phytosanitary Certificate issued by the authorized officer at country of origin or Phytosanitary Certificate for re-export issued by the country of re-export along with attested copy of phytosanitary certificate from country of origin, as the case may be, with the additional declarations being free from pests mentioned under Schedule-V and VI of this order or that the pests as specified do not occur in the country or state of origin. (3) The special conditions relating to treatment and freedom from soil, and/ or weed as specified under Schedule V and VI shall be endorsed on such Phytosanitary certificate wherever applicable. (4) The consignment of plants and planting material shall be imported subject to the conditions stipulated under Clause 3(4) & 11." 12. Schedule-V of the PQ Order contains list of plants and plant materials restricted import permissible only with the recommendation of authorized institutions with additional declarations and special conditions. Item-7 of the said Schedule-V rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for consumption or processing. The definition clause did not contain any precise definition of the term "Animal feed" and broadly divided the grain or seeds into two parts, i.e. grain meant for processing or consumption as against seeds meant for sowing or propagation. Entry No.7 of Schedule-V pertains to cotton and the category of plants and plant materials covered under the said Entry is "seeds for sowing". Entry No.7 thus pertains to cotton which is meant to be imported in the form of seeds for sowing. Any cotton thus imported as seeds for sowing purpose would fall in Schedule-V and import thereof would be restricted and permissible only with the recommendation of the authorized institution with additional conditions specified in the said Schedule. 15. In comparison, Schedule-VII pertains to list of plants, imports of which are permissible on the basis of phytosanitary certificate issued by the exporting country and certificate of fumigation, if required. The conditions of import contained in Schedule-VII themselves are less stringent as compared to those prescribed in Schedule-V. This is otherwise also logical as in the present case, since Schedule-V covers cases where c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We now revert to the second aspect of the matter, viz. whether the cotton seeds imported for animal feed consumption can be in any form other than crushed /kibbled. At the relevant time, the term "Animal feed" was not defined in Clause-2 of the PQ Order. With the notification of 27.12.2017, a definition came to be inserted defining "Animal feed" as kibbled-crushed seeds/ pellet/ dried cake form thereby denatured and free from weed seeds, bacterial and fungal pathogens. Similar amendment was made in Entry No.19 of Schedule-VII where simple entry "Animal feed" was replaced by the above noted expression. This amendment cannot be seen as clarificatory in nature. Previously, till the amendment, Schedule-VII permitted import of animal feed subject to fulfillment of conditions prescribed therein. Entry No.19, which stands amended, requires that such animal feed must be in kibbled-crushed seeds form or in the form of pellet or dried cake. Per se, any substance meant for animal feed does not have to be in these forms. The added requirements are more in the nature of conditions imposed for import of any substance as animal feed. Such conditions cannot be seen as clarificatory in nature. Onl ..... 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