TMI Blog2023 (8) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... sought a test to be undertaken by CRCL, Mumbai as to whether the sample was fit for human consumption or not. When this test was not sought at an earlier point of time vide communication dated 14-11-2022 and the report of Anacon Laboratory, a FSSAI accredited Laboratory being clear that the sample was fit for human consumption, there does not appear to be any basis for the Superintendent on 30-11-2022 to again make a request for confirming whether the sample was fit for human consumption or not. In this regard, if Regulation 9 of the Regulation of 2017 is perused, it becomes clear that two parts of the food sample are required to be first taken. The Authorised Officer is required to forward one part of the sealed and labelled article to the Food Analyst at a notified Laboratory under the Regulation of 2011. If the sample is found to be safe, the remaining sample is required to be returned to the importer. If the sample is found to be unsafe, on the request received from the food importer, the second sample can be forwarded to the Referral Laboratory for analysis. It thus indicates that only if the sample sent to the Food Analyst is found to be unsafe that such second sample be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Nagpur drawing four samples from each container. In all forty samples were accordingly collected. On 14-11-2022, the Superintendent of Customs forwarded the samples to the Central Revenue Control Laboratory (CRCL), Mumbai and sought opinion of results on testing as under : ...whether a) food starch is added, if yes, to what extent, and the nature of it. b) impurities are removed. c) any additives have been introduced, if yes, please share the details. d) boiled, if yes, to what extent. e) process of drying has happened, if yes, to what extent. 3. On the same day, the Superintendent of Customs forwarded similar samples to Anacon Laboratory Private Limited, Nagpur, a FASSAI accredited Laboratory for seeking information of results on testing as under : whether a) sample is fit for Human Consumption. b) food starch is added, if yes, to what extent, and the nature of it. c) impurities are removed. d) any additives have been introduced, if yes, please share the details. e) boiled, if yes, to what extent. On 16-11-02022, CRCL, Mumbai submitted its report to the Superintendent of Customs. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the judgment dated 22-12-2022, the writ petition was treated as an application made under Section 110A of the Act of 1962 and that application was directed to be decided by the Commissioner of Customs. Accordingly, on 11-1-2023, the Commissioner of Customs decided the said application and declined to release the said goods under Section 110A of the Act of 1962 on the ground that the said goods did not contain starch or other additives and did not fall under CTH2106. Shortly thereafter, the Superintendent (SIIB), Customs effected a seizure and issued a seizure memorandum on 18-1-2023. The respondent being aggrieved by the order passed by the Commissioner of Customs preferred an appeal under Section 129A of the Act of 1962. By its order dated 10-5-2023, the CESTAT proceeded to allow the said appeal and directed provisional release of the said goods under Section 110A of the Act of 1962. Being aggrieved, the appellant has challenged the said order. 5. Shri S.N. Bhattad, learned counsel for the appellant, referred to the test reports received from CRCL, Mumbai and Anacon Laboratory, to submit that since the same were contradictory in nature, the samples were sent to a Referral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FSSAI. Such query was not made to CRCL, Mumbai in the request letter dated 14-11-2022. Hence no opinion in that regard was given by it. Referring to the communication dated 5-12-2022 issued by the Superintendent to the respondent, it was submitted that since the test report submitted by Anacon Laboratory was in favour of the respondent, there was no reason for seeking a re-test in that regard. Reference was further made to the communication dated 12-12-2022 issued by the respondent to the Assistant Commissioner of Customs to point out that the Customs Laboratories were not competent nor capable of testing food items. Such tests were required to be carried out by the FSSAI accredited Laboratory. It was only in the subsequent communication dated 14-12-2022 that was issued by the Superintendent to CRCL, New Delhi that its opinion with regard to fitness for human consumption was sought. No consent of the respondent as importer was sought before seeking such reference. Despite a clear report submitted by CRCL, Mumbai, further communication dated 30-11- 2022 was issued to the Chemical Examiner and on that basis, reference was sought to be made in view of the reply filed by the Chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aboratory (CRCL), Mumbai Anacon Laboratory Private Limited, Nagpur Whether - a) food starch is added, if yes, to what extent, and the nature of it. b) impurities are removed. c) any additives have been introduced, if yes, please share the details. d) boiled, if yes, to what extent. e) process of drying has happened, if yes, to what extent. Whether - a) sample is fit for Human Consumption. b) food starch is added, if yes, to what extent, and the nature of it. c) impurities are removed. d) any additives have been introduced, if yes, please share the details. e) boiled, if yes, to what extent. From the aforesaid, it is clear that the tests sought to be undertaken by CRCL, Mumbai was as to whether food starch was added to the samples, whether impurities were removed and any additives had been introduced. These queries have relevance with the aspect of classification of the goods in question. The tests sought from Anacon Laboratory were with regard to fitness of the samples for human consumption coupled with addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard, if Regulation 9 of the Regulation of 2017 is perused, it becomes clear that two parts of the food sample are required to be first taken. The Authorised Officer is required to forward one part of the sealed and labelled article to the Food Analyst at a notified Laboratory under the Regulation of 2011. If the sample is found to be safe, the remaining sample is required to be returned to the importer. If the sample is found to be unsafe, on the request received from the food importer, the second sample can be forwarded to the Referral Laboratory for analysis. It thus indicates that only if the sample sent to the Food Analyst is found to be unsafe that such second sample be referred to the Referral Laboratory. The communication dated 30-11-2022 issued by the Superintendent therefore does not appear to be in consonance with Regulation 9 of the Regulation of 2017. Though the learned counsel for the appellant sought to rely upon Regulation 10(9) of the Regulation of 2017 to urge that the Authorised Officer was empowered to seek re-testing by sending the second sample to the Referral Laboratory for re-testing, it is seen that this course is open only after satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
