TMI Blog2022 (9) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... would in principle be permissible for an importer to apply to the competent authority of Customs to be granted the permission to move such articles from a custodian warehouse to a public warehouse. This would thus enable the importer to move the goods out of the airport or the cargo terminal and to store the same in a public warehouse. The movement of those goods would however necessarily have to be regulated by the Customs authorities since the goods while transiting from the custodian warehouse to the public warehouse are still to be cleared for the purposes of home consumption. The imported articles of food are statutorily subject to inspection and analysis under the provisions of the Act read with the Import Regulations which have been noticed above. An importer of food articles thus cannot contend that the goods be cleared for home consumption even before they have been duly inspected by the authorities of FSSAI and a conforming report having been drawn and submitted before the authorized officer. It would be pertinent to recollect that Section 47(5) of the Act only makes provisions for the authorized officer of FSSAI to take samples of the imported articles and forward the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use; OR Direct, the Respondent No. 3, to take a sample for the purpose of grant of NOC from a Public warehouse as contemplated under Section 49 of the Customs Act, pending clearance of the goods; OR Direct, the Airport Economic Regulatory Authority of India to levy Demurrage Charges on importer of Consumable goods after grant of NOC from FSSAI; c. Direct Respondent No. 5 to expeditiously decide the application of the Petitioner for storing its goods u/s 49 Customs Act, and in any case within 48 hours of receiving such application; 2. The petitioner had approached this Court essentially aggrieved by the alleged delay caused by the Food Safety and Standards Authority of India ( FSSAI ) in the grant of a No Objection Certificate (NOC) for clearance of imported goods resulting in prohibitive demurrage charges coming to be levied. The petitioner had contended that in terms of the provisions made in Section 47(5) of the Food Safety and Standards Act, 2006 (the Act), FSSAI was obliged to duly inspect the imported food articles and accord clearance within a period of 5 days of taking the requisite samples. It was contended that FSSAI had on innumerable occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 2. In view of the aforesaid contentions as addressed, let learned counsel appearing for FSSAI address submission on the next occasion. 3. List again on 27.09.2022. 5. Learned counsel for the petitioner has essentially argued that in terms of the provisions made in the Customs Act, 1962 the procedure for clearance of imported goods which stand enshrined in Chapter VII of the 1962 Act place an embargo on all imported goods unloaded in a customs area from being released for home consumption. The aforesaid restrictions stand placed in Section 45 which mandates that they would remain in the custody of such persons as may be approved by the Principal Commissioner or Commissioner of Customs. The clearance of goods for home consumption is thereafter dealt with in Section 47 of the Act. 6. Section 48 of the 1962 Act then deals with contingencies where goods are not cleared for home consumption within 30 days from the date of unloading. That provision reads as follows: - 48. Procedure in case of goods not cleared, warehoused, or transhipped within thirty days after unloading.- If any goods brought into India from a place outside India are not cleared for home co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the petitioner submitted that importers must be recognized to have the right as well as the choice to move the goods to a public warehouse pending clearance by FSSAI. 9. It becomes relevant to note that the articles which were imported in the present case were hops, an ingredient which is used for providing a bitter flavor to beer. The article was thus liable to be duly inspected and cleared by FSSAI before it could be released for home consumption. As was already noticed by the Court the inspection and analysis of imported articles of food is governed by Section 47(5) of the Act which reads as under: - 47. (5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer. 10. The manner in which imported food articles are to be inspected and NOC s granted is then governed by the provisions contained in the Food Safety and Standards (Import) Regulations, 2017 ( Import Regulations ). For the purposes of the present writ petition, it would be apposite to notice the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess at the time of import 11. Regulation 8 then makes detailed provisions with respect to the storage of imported goods. That provision reads thus: - 8. Storage facilities for Imported Foods (1) No consignment of food articles shall be stored in a manner that one type of articles of food come in contact with other type of articles of food. (2) The imported articles of food shall be stored in accordance with the specified storage conditions in the custom warehouse before clearance, failing which, the concerned Authorised Officer may refuse to grant no objection certificate for import clearance of the food consignment. (3) The port authorities and custodian of freight stations shall ensure adequate and conducive storage infrastructure; meeting the safe storage of various types of imported food consignments in the customs area till the imported articles of food is cleared by the custom authority. (4) In case of imported article of food which requires special storage condition, the Authorised Officer shall verify the true storage conditions required for the consignment (5) The Authorised Officer shall confirm from the cargo operator or Custodian of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a manufacturer undertaking is not provided by the Food Importer, the Authorised Officer is empowered to break open the seal and collect a sample for lab analysis. (c) The Authorised Officer may collect a representative sample from the sealed container, for lab analysis, wherever the provided sealed representative samples appear to be doubtful. (3) In respect of imported articles of food having shelf-life less than seven days, the applicant shall declare the same in FORM - 13 allowing the Authorised Officer to draw sample and issue provisional no objection certificate to the customs, without waiting for the analysis report from laboratory and on receipt of the report analysis from the laboratory, the Authorised Officer shall communicate to the customs along with no objection certificate if products conform to the standard. (3a) In case of imported pre-packaged retail food article, the Authorized Officer after successful completion of visual inspection and sampling, may issue a provisional no objection certificate to move the food consignment to a well equipped storage facility. (3b) For the purpose of sub-regulation (3a), the Authorized Officer shall take a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (12) The Food Analyst shall analyse or cause to be analysed by a notified laboratory an article of food forwarded by the Authorised Officer as per the parameters specified in the Act and the regulations made thereunder and shall forward his report within five days to the Authorised Officer whether the product is conforming or non-conforming. Provided that proprietary foods, shall be tested for as per general safety requirements for contaminants, toxins, residues and microorganism, laid down by the Food Safety and Standards Regulation, 2011, wherever applicable, depending on the nature of product. The Certificate of analysis, submitted by the importer, shall be sent with the sample. The COA should be referred while undertaking the requisite tests for quality parameters. (13) If the sample cannot be tested by the laboratory within the specified time it shall state the reasons for the same in writing to the Authorised Officer. The food analyst shall forward the report of analysis to the Authorized Officer duly signed by him. 13. As would be evident from the provisions introduced in terms of Regulation 8, imported articles of food are liable to be stored in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 in terms of which fixed charges are leviable for processing and storage of cargo in warehouses established by it. 16. Appearing for the Customs authorities, learned counsel for the said respondent has submitted that the grievance which is raised by the petitioner is clearly misplaced since in the present case no permission as such was sought by the petitioner for moving the articles from the custodian warehouse to a public warehouse. However, and it was so clarified by the said respondent that in case an importer were to make an application seeking permissions as contemplated under Section 49 of the 1962 Act, the same would be considered in accordance with law. In any case, the said respondent would contend that movement of the imported articles from a custodian warehouse to a public warehouse is not prohibited in law. Learned counsel appearing for the Customs additionally submitted that the directions which are sought and in terms of which the petitioner prays for the customs authorities to attend to applications which may be made under Section 49 of the 1962 Act within 48 hours of the receipt of such ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all that may be observed is that the authorities of FSSAI would be liable to be recognized as being placed under the obligation of ensuring that all imported articles of food are inspected with due expedition and promptitude. However, it would not be prudent to prescribe or stipulate a particular timeframe within which that exercise of inspection, taking of samples and clearance is ultimately completed. This since it would be impossible for the Court to predict the vagaries of a particular situation as well as the volume of imported articles of food that may be pending for inspection at any particular point of time by FSSAI. 19. However, the apprehension which has been expressed in the writ petition stands duly taken care of and laid to rest in light of the unanimous position as struck by and on behalf of respondents 1, 4, 5, 6 and 8 who had stated that the transportation of imported articles from the custodian warehouse to a public warehouse is not prohibited under the provisions of the 1962 Act. This would enable the authorities of FSSAI to inspect imported articles of food and draw samples for analysis thereof irrespective of whether the imported articles of food are stored ..... X X X X Extracts X X X X X X X X Extracts X X X X
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