TMI Blog2023 (8) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... which was to the effect that the goods being imported were safe for human consumption. It is in such context, the Court noted that the affidavit filed on behalf of the FSSAI was not in compliance on what was observed by the Court in above order, and in such context, as a clear affidavit to that effect was not placed by the FSSAI, the Court expressing its dissatisfaction, had adjourned the proceedings for today, to enable FSSAI to place on record clear affidavit in terms of what the Court expected in paragraph 4 of above-mentioned order. Accordingly, a clear stand of the FSSAI is on record that the Soyabean sought to be cleared by the petitioner and subject matter of the present proceedings, in no manner whatever would be harmful for human consumption/health in whatever form, in the light of the requirements and parameters of the FSSAI Act, 2006 and the Rules framed thereunder, if the goods are permitted to be cleared. Thus, the approach as now sought to be adopted by the Customs Department and more particularly in the light of the position taken by respondent no.1-Union of India, respondent No. 8-Genetic Engineering Appraising Committee as also respondent no. 10-Ministry of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soyabean; b) That this Hon ble Court be pleased to declare that the provisions of Food, Safety and Standard Act, 2006 and the Orders issued thereunder shall apply to import of Soyabean in the present case; c) That in the event of conflict between Environment Protection Act, 1986 and the Food, Safety Standard Act, 2006, the later shall prevail over the former; d) This Hon ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the illegal and arbitrary Seizure dated 4th October 2022 | comprising of the Soyabean consignment totally weighing 17742 MT detailed in Bill of Entry Nos. Bills of Entry Nos. 2295860 dt. 03.09.2022; 2296035 dt. 04.09.2022, 2296076 dt. 04.09.2022, 2295993 dt. 04.09.2022, 2296070 dt. 04.09.2022; e) In the alternative to prayer (d), that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India to setting aside the illegal and arbitrary Seizure dated 4 October 2022 comprising of the Soyabean consignment weighing 17742 MT detailed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the impugned goods; k) for ad-interim reliefs in terms of the prayers (g) (j) above; l) for costs of this Petition; m) for such further and other reliefs as the nature and circumstances of the case may require. 2. Perusal of the record would indicate that from time to time the proceedings were heard by different benches from October, 2022. A coordinate Bench of this Court (K. R. Shriram A.S. Doctor, JJ.) in its order dated 20 October, 2022, accepted an ad-hoc arrangement arrived between the parties, which was without prejudice to the rights and contentions of the parties in regard to the warehousing of Pigeon Peas and Soya bean. 3. A substantive order recording the issues which fell for consideration in the present proceedings was passed by a co-ordinate bench of this Court on 20 January, 2023 (Nitin Jamdar Abhay Ahuja, JJ.). In such order, the contention as urged on behalf of Customs Department, that as per the Import Policy, all imported goods are subjected to domestic laws, acts, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods, came to be recorded. As also the fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Customs Department read thus : 6. Genetically Modified Food, Feed, Genetically Modified Organism (GMOs) and Living Modified Organisms (LMOs) Import of Genetically Modified Food, Feed, Genetically Modified Organism (GMOs) and Living Modified Organisms (LMOs) will be subject to the following conditions : (a) The import of GMOs / LMOs for the purpose of (i) R D; (ii) Food; (iii) Feed; (iv) Processing in Bulk and (v) For Environment release will be governed by the provisions of the Environment Protection Act, 1986 and Rules framed thereunder (Environment Protection Act, 1986 and Rules framed thereunder can be accessed from the website of the Ministry of Environment Forests : http://envfor.nic.in). (b) The import of any Food, Feed, raw or processed or any ingredient of food, food additives or any food product that contains GM material and is being used either for Industrial productions, Environmental release, or field application will be allowed only with the approval of the Genetic Engineering Approval Commitee (GEAC), set up by the Ministry of Environment Forests (the details of GEAC can be accessed from the website link of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronment Protection Act, 1986. 8. Considering the larger implications of the issue at hand and that no specific stand of the Genetic Engineering Approval Committee and the Ministry of Environment and Forests and Climate Change (MoEF CC) in respect of the subject matter is on record, it would be appropriate that the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee and the MoEF CC are impleaded in this Petition. Accordingly, we grant leave to the Petitioner to add the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee, Ministry of Health Family Welfare and MoEF CC as party respondents. Amendment to be carried out within a period of two days. Reverification is dispensed with. 9. If the Petitioner will give notice to the added Respondents and file the affidavit of service, stand over to 31 January 2023. 4. Subsequent to the above orders, the proceedings had continued to appear before the Court. We do not refer to all the orders, as they may not be so relevant, suffice it to observe that by an order dated 19 April, 2023, the Court recorded its observations on the affidavits which were placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance are filed. Though the Genetic Engineering Appraisal Committee may fall under the general superintendence of the Ministry of Environment, it is a distinct entity which a specified specialized role. It is unclear whether the Advocate has the authority to represent Respondent No. 8. We place our strong dis-approval on record for this state of affairs in an important issue such as this. How its litigation is handled should be a matter of concern for the Government. 5. We direct that affidavit be filed by the Genetic Engineering Appraisal Committee specifically regarding the commodities at hand and their role in regulating import. Though the Petitioner has shown urgency in the matter and we understand the anxiety, considering the importance of the issue, we are not inclined to proceed without a specific stand of the Committee, which ought to have been placed on record. 6. We direct the Registry to forthwith send a copy of this order to the Secretary of the Ministry of Environment, Forest and Climate Change and to the Incharge of Genetic Engineering Appraisal Committee to draw their attention to this state of affairs regarding the filing of this affidavit without instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The Court accordingly passed the following order:- 1. Heard learned counsel for the parties. 2. This order is in continuation of orders which we have passed from time to time. As we have recorded in the earlier orders dated 20 January 2023 and 19 April 2023, there is a divergence of views between the three statutory bodies which are Respondents before us. These the Customs Department, Food Safety and Standards Authority of India and Genetic Engineering Appraisal Committee which are performing functions under Ministry of Environment, Forest and Climate Change. In view of this divergence, we had requested learned Additional Solicitor General to assist the court. 3. The learned ASG states that he has taken joint meeting of the statutory authorities to reconcile their stand. The learned ASG states that import of genetically modified Soyabeans can be segregated into two categories : one is below 1% and other is above 1%. He states that it will have to be determined from a Laboratory which has the method and food matrix wise testing of genetically modified soyabeans under National Accreditation Board for Testing and Calibration Laboratory ( NABL ). The learned ASG subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 considering the larger implications and also the peculiar situation which would arise in non-clearance of the imports, on such issues the Court passed a detailed order including reflecting on such issues. The Court opined, that such issues are likely to adversely affect the trade itself. The Court also observed that similar issues on non-clearance of the goods had often reached the Courts, thereby observing that there cannot be any uncertainty on the issues, which would adversely affect the trade and the business, whichever may be the category of goods, requiring a laboratory clearance, for which a robust mechanism was the necessary. An assurance of the learned ASG, that these issues would looked into by the Government, also came to be recorded. The Court also recorded the stand of the parties that there was no hurdle for clearance of pigeon peas, which could be cleared by the Petitioner, without the same being entangled in the proceedings qua soyabean. The said order dated 19 June, 2023 is required to be noted which reads thus:- 1. We could not be waiting any longer for the laboratory report, which is intended to be placed on record, as observed by the Court in its previo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by such experts agencies. 4. The consignment of the petitioner has got stuck on issues concerning the laboratory clearance. If this was the fate of the goods to be imported, the Petitioner would have certainly had a second thought to import such cargo. It would be not out of place to observe that a bonafide businessman is not interested in litigation, and more particularly, on such issues. 5. We, therefore, request the learned ASG who has fairly stated that these issues would be looked into at the highest level, in the appropriate department. We, accordingly, adjourn the proceedings for two weeks to enable the learned ASG to obtain appropriate instructions from the concerned laboratory and place the same on record, as observed by us. 6. At this stage, Mr. Nankani submits that in so far as the Pigeon peas are concerned, there is no hurdle for clearance of such goods, which can be cleared by the Petitioner without the same being entangled in the proceedings qua soyabean. 7. In such context, the Mumbai Port Authority has addressed a letter dated 11th May 2023 to the Petitioner setting out the storage/ demurrage charges. As seen from the said letter, the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, a specific approval of the FSSAI and a statement to that effect, needs to be placed on affidavit on behalf of FSSAI-Respondent No. 7. The Court observed that FSSAI needs to file such affidavit as the Customs was also dependent on the FSSAI, which is supposed to be the custodian on food safety and standards and which would be seriously concerned for clearance of such goods/items before they are put to human consumption. In so far as the contention on behalf of Customs Department was concerned, the Court observed that the customs department was also struggling with lot of uncertainty on the issues, referring to the report of the Kochi Laboratory. The Court however, observed that once the initial stand of the GEAC itself is clear i.e. to call for the test report from the FSSAI, then certainly, the role of the FSSAI was crucial. Peculiarly the objection as urged on behalf of the Customs Department on the report of the FSSAI and the assertion of the Customs Department that some more tests are required to be undertaken on the basis of some questionnaire which has received by Mr.Mishra, learned counsel for the Customs Department from the Customs Officer, as placed on record was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s consignment of Soybean. 4(vii) It is respectfully submitted that vide order dated 12 th September 2016 wherein the order provides for drawing of one homogeneous sample out of the commingled cargo for multiple importers with same IGM Number, the Cargo of soyabean having BOE No. 2295860 dated 03.09.2022 IGM No. 2320828 was scrutinized, visual inspection conducted and sample was drawn. The sample was found to be complaint by FSSAI s accredited Laboratory, due to which the Soya beans consignments having Bill of entry No. 2295993, 2296035, 2296070, 2296076 was cleared against the Bill of Entry No. 2295860 dated 03.09.2022, IGM No. 2320828. 4. It is also argued before us on behalf of FSSAI that there ought not to be an objection for clearance of the said goods from the point of view of FSSAI Standards. The reply affidavit of FSSAI has also noted various obligations of the FSSAI. It refers to Section 22 which pertains to genetically modified goods, organic goods, functional goods, proprietor goods, etc. and the regulation of such products. However, what we note is that a specific statement in such affidavit filed on behalf of the FSSAI has remained to be made that the Soybe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt of the present petition. The said office memorandum is taken on record and marked X for identification. Our attention is drawn by Ms. Bharucha to para 4 of the said office memorandum which reads thus:- 4. In this regard, it is to apprise that permission for import of soybean in this matter was given by FSSAI. The FSSAI is established under Food Safety and Standards (FSS) Act, 2006 for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. 10. List the matter on 25th July 2023, High on Board. 11. Permission to file Affidavit-in-rejoinder on FSSAI is granted. 8. It is on such backdrop, the proceedings were thereafter substantively heard on 07 August, 2023 when for the first time, Mr. Devang Vyas, learned ASG having taken over charge at Mumbai, entered appearance in the proceedings, on the backdrop of what had been transpired in the matter so far. Elaborate submissions were made by the learned counsel for the parties and on the discussion which had taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 3 of said order dated 18th July 2023. Learned Counsel for the FSSAI has stated that he shall place on record an additional affidavit as expected in terms of our observations as contained in the said order. Let such affidavit be placed on record and served on all the parties. 7. We adjourn the proceedings to 9th August 2023. High on Board . 9. Accordingly on 09 August, 2023, the Court had set down the proceedings for hearing. Mr. Vyas, learned ASG had made his submissions and informed the Court that considering the peculiar facts of the case, the following approach can be adopted:- i. The respondents be permitted provisional release of the goods, however, on the petitioner furnishing a bank guarantee for the differential duty; ii. The petitioner would also furnish a bond with appropriate undertakings in regard to the payment of duty and other necessary statements so as to co-operate in the investigation which is being undertaken by the Customs authorities in regard to the exact country of origin of imports, which would have a material bearing in regard to the clearance of the goods from the duty perspective as also on the nature of imports; iii. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. If such affidavit is not fled by the FSSAI, we shall be constrained to pass further appropriate orders and there shall be no other alternative. 2. Stand over to 10th August 2023 at 10.30 a.m. High on Board . 12. Today in compliance of our orders passed yesterday (09 August, 2023), affidavit of Mr. Sukant Chaudhary, Deputy Director, Food Safety and Standards Authority of India is placed on record. In the context of our order dated 18 July, 2023, in paragraph 4 such affidavit states thus:- 4. That in view of the above, the answering Respondent submits and brings on record before this Hon ble Court that Soybean sought to be cleared by the Petitioner and subject matter of the present proceedings, in no manner whatsoever would be harmful for human consumption/health in whatever form, in the light of the requirements and parameters of the FSSAI Act,2006 and the Rules framed thereunder, if these goods are permitted to be cleared. 13. Accordingly, a clear stand of the FSSAI is on record that the Soyabean sought to be cleared by the petitioner and subject matter of the present proceedings, in no manner whatever would be harmful for human consumption/health in whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 4 to the present proceedings). We have also recorded that the customs have cleared the Pigeon Peas, after the petitioner paying the demmurrage / storage charges as being to be charged by the Port Authority. It appears from the submission as made by Mr. Setalwad, learned senior counsel along with Mr. Bhalwal, for the Mumbai Port Authority, that the petitioner is liable to pay the Port Authority the demurrage / storage charges, on the goods as leviable under the rules. It appears that there are disputes in this regard between the petitioner and the Port Authority, which were also subject matter of some reference in our earlier orders. Be that as it may, we find from the prayers as made in the petition that in the proceedings of this petition, we are not called upon to adjudicate any specific dispute between the petitioner and the Port Authority. However, in the peculiar facts of the case, Mr. Nankani would submit that the goods have suffered demurrage / storage charges, not due to the fault of the petitioner, but due to reasons which were not within the control of the petitioner and for such reasons, the petitioner ought not to suffer such expenditure, as sought to be levied b ..... 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