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TMI Blog2023 (9) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of declaration to declare the search conducted at the factory premises, office premises as well as the residential premises of one of the directors of the Petitioner Company is illegal; and/or E. Issue a writ, order or direction in the nature of mandamus to direct the Respondent to release the goods which has been illegally detained by panchanama dated 08.07.2021 (Annexure P- 38); and/or F. Issue a writ, order or directions in the natue of certiorari to set-aside the seizure memorandum dated 23.07.2021; and/or" 3. The petitioner is a duly incorporated company. It is engaged in the business of import, manufacture, and trading in Ethylene Ripener/Ethephon. For that, it imports bulk quantities of that commodity from China and repacks the same in smaller packings. At present, the petitioner imported 23 metric tons Ethylene Ripener/Ethephon 20%, in bags weighing 25 Kgs. Each, against Invoice dated 18.05.2021. Those, goods were shipped from China on 24.05.2021 and arrived at I.C.D. Dadri against Bill of Entry bearing No. 4477470 dated 28.06.2021. There is no dispute about the computation of custom duty and its payment thereof. In the meanwhile, on 24.06.2021, a team of Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed either under the Act or any other law for the time being in force. Referring to the provisions of the Act, it has been submitted that no such prohibition has been imposed either on Ethephon or Ethylene Ripener. 6. Second, referring to the reason given in the seizure order and the provisions of Insecticide Act, 1968 (hereinafter referred to as 'Insecticide Act'), it has been submitted though Ethephon is an insecticide yet there is no prohibition in law created under the Insecticide Act on the import or manufacture of Ethephon. Merely because Ethephon is an insecticide and therefore, a registration may be required to be obtained for its manufacturer or import, by virtue of regulatory provision Section 9 of the Insecticide Act, no prohibition on its manufacture or import may arise or be inferred in law. 7. Third, to make that submission complete, heavy reliance has been placed on the language of Section 38(1)(b) of the Act to submit Ethephon is not an insecticide used either to prevent, destroy, repel, or mitigate any animal or plant life, not useful to human beings. Being a ripening agent, it does not cause such harmful effects on any plant or animal life form. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins prohibited goods that may be proceeded against under the Act, without any further notification being required in terms of Section 11(3) of the Act. 13. Having heard learned counsel for the parties and having perused the record, Section 110(1) of the Act reads as below: "110. Seizure of goods, documents and things. (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer." 14. Section 111(d) of the Act reads as below: "111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confiscation- (a) ..... (b) ..... (c) ..... (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;" 15. Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) any substance specified in the Schedule; or (ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the Official Gazette, include in the Schedule from time to time; or (iii) any preparation containing any one or more of such substances;" 19. It is an admitted fact, Ethephon is a scheduled commodity under the Insecticides Act. Therefore, by virtue of the language of section 17(1)(c) read with Section 3(e)(i) of the Insecticides Act, a stipulation in law does arise on the import of Ethephon to allow its import only upon fulfillment of conditions of prior registration obtained under Section 9 of the Insecticides Act. To that extent, the second submission advanced by learned counsel for the petitioner that the requirement to obtain a prior registration under the Insecticides Act is only a regulatory measure not provided with any consequence (for its non-compliance), is misconceived. 20. Then, Section 2(33) of the Act defines the term "prohibited goods". It reads: "2. Definitions. In this Act, unless the context otherwise requires,-- (1) ..... (2) ..... ....... ....... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act does not apply to household insecticides or garden insecticides or such insecticides that may be used with respect to land under a persons' cultivation. Second, by virtue of Section 38(1)(b), the provisions of the Insecticides Act would not apply to any scheduled commodity or any other commodity containing the scheduled commodity if the same were intended for any purpose - other than (i) preventing, (ii) destroying, (iii) repelling and, (iv) mitigating insects, rodents, fungi and other forms of plant or animal life 'not useful to human beings'. 26. Thus, Section 38(1)(a) excludes the applicability of the Insecticides Act, directly, viz a viz types of insecticides that may be used for household purposes or for kitchen garden purposes or in respect of land under cultivation. Section 38(1)(b) excludes those insecticides from the operation of the Insecticides Act if they are not used for the purpose of (i) preventing, (ii) destroying, (iii) repelling and, (iv) mitigating various types of plant and animal life that may not be useful to human beings. 27. Thus, any insecticide that may be harmful to the occurrence, sustenance, growth, and propagation of various types of pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or animal life forms, since we share our wonderful planet with them, even though we may not perceive a direct or visible interaction or inter-dependency with them. So even a simple fungus or an algae, is an important member of our world. In the interest of each life form, any insecticide that may have the potential to cause a specified harm, through (its use), would remain regulated under the Insecticide Act. 31. In the context of potential vast devastation that may arise upon unregulated use of insecticides, Section 38 of the Insecticides Act consciously does not employ any word or phrase to restrict the operation of the Insecticides Act to only such insecticides as may be 'intended' to cause any of the four specified harmful effects. The correlation between intention and harm, does not exist. On the contrary, if an insecticide by nature of its properties and effect, has the potential to cause such harmful effect, then, even if such harmful effect may arise incidentally or as a bye-product, either upon its use or in the process of its manufacture or import, it will remain regulated by that law. 32. Read in its entirety, Section 38(1)(b) of the Insecticides Act only seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. As early as in Commissioner of Income Tax, Madras vs. R. Venkataswamy Naidu, AIR 1956 SC 522, it came to be settled that the burden to establish an exemption rests on the person who claims its existence. That general principle or rule of evidence was equally applied to taxation laws. Relevant to our discussion, it was observed as under : 12. This contention was rejected by the Income Tax Officer, the Appellate Assistant Commissioner as well as the Income Tax Appellate Tribunal. They were of the opinion that the assessee had failed to furnish proper materials and had failed to discharge the burden which lay on it to prove that the income derived by it from the sale of milk during the accounting year was agricultural income. They rightly placed the burden of proof on the assessee but the High Court erroneously framed the question in the negative form and placed the burden on the Income Tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income. In order to claim an exemption from payment of income tax in respect of what the assessee considered agricultural income, the assessee had to put before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insecticides Act is restricted to such insecticides only as may not cause any of the specified harm to any other plant or animal life. 40. The FSSAI established under the Food Safety and Standards Act, 2006 seeks to guard the health interests of the human species only. On the other hand, the Insecticides Act seeks to guard the minimum existential interest of all life forms, from the harmful effects that may be caused by use of an insecticide. To that extent and for that reason, the Insecticides Act is both a special Act and an enactment with wider outreach and spread than the Food Safety and Standards Act, 2006. 41. In the absence of any conflict between the two enactments, the Insecticides Act would play out to the full, in face of the FSSAI Act, such that the permission to use Ethephon as a permitted ripening agent for human beings does not ipso facto amount a declaration that it is non-injurious to all other life forms. To that extent the notification issued under the FSSAI Act, remains extraneous to the issue at hand. 42. As to the fourth submission of the learned counsel for the petitioner, it is true that specific objection had been raised by the petitioner that Ethephon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requisite Registration Certificate under the Insecticides Act. To that extent the impugned proceedings are not lacking in inherent jurisdiction. 46. The reliance placed by learned counsel for the petitioner on Kaka Overseas Ltd. Vs. Union of India, 2021 (376) ELT 452 (Bom.); M.M. Traders vs Commissioner of Customs, 2023 (383) E.L.T. 439 (Del.); M. Chandrashekhar vs Deputy Commissioner of Customs, Cochin, 2018 (364) E.L.T. 33 (Ker.); Paper Products Ltd. Vs. Commissioner of Central Excise, 1999 (112) E.L.T. 765 (S.C.); Commissioner of Cus. (Exports), Chennai vs Synergies Castings Ltd., 2014 (313) E.L.T. 50 (Mad.); Jaymatajee Enterprise (Seller) & Ors. Vs Commissioner of Customs (Preventive) & Ors., 2020 (10) ADJ 350; Shivashish Dwivedi & Anr. Vs Food Safety and Standards Authority of India & Ors., W.P. (c) No. 13025/2018 decided on 30.01.2020; Additional District Magistrate (Rev.) Delhi Admn. Vs Siri Ram, (2000) 5 SCC 451 and; Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 SCC 27 is misplaced. The ratio inhering in those decisions does not support the petitioner's case. 47. In Kaka Overseas Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit or direction to quash/repeal the Direction dated 16.08.2018 and the guidance note No. 04 of 2018 released by the Respondent No. 1, as illegal and void ab initio; b) Issue a writ of Mandamus or any other appropriate writ or direction to the Respondents to permanently restraint the import of artificial fruit ripening sachet in any form whatsoever throughout the territory of India; c) Cost of the proceeding may also be directed against the Respondent and in favour of the Petitioners;" 2. Having heard the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that several grievances have been ventilated by the petitioner about the use of Ethepone in powder form being used for ripening of the fruits. Learned counsel for the petitioner has also drawn out attention to the notification which is at page No.67 (Annexure -4) dated 16th August, 2018. 3. It appears that Food Safety and Standards Authority of India has permitted import of Ethepone in powder form, however, as per the petitioner, the effect of this is dangerous to public health. 4. It appears that to arrive at any conclusion about the effect of Ethepone in powder form, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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