Bombay High Court
Neena Uppal vs Union Of India And Ors on 4 March, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:12442-DB 15 WP1078-24.DOC
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
CIVIL APPELLATE JURISDICTION
signed by
TRUSHA
TRUSHA TUSHAR
TUSHAR MOHITE
MOHITE Date:
2024.03.14
WRIT PETITION NO. 1078 OF 2024
19:46:02
+0530
Neena Uppal, aged 61 years
carrying on business in the name and
style as M/s.Neena Enterprises, as a sole
Proprietress thereof, having her
office at Shop No.8, 1st Floor,
5-1-767/8/FF, Vithaldas Market, Koti,
Hyderabad, Telangana - 500 095 ... Petitioner
Versus
1. The Union of India through,
The Secretary, Department of Revenue
Ministry of Finance having its office
North Block, New Delhi - 110 001
2. The Commissioner of Customs (NS-1)
Jawaharlal Nehru Customs House
Having his office at Jawaharlal Nehru
Customs House, Nhava Sheva,
Dist - Raigad
Maharashtra, PIN - 400 707
3. The Deputy Commissioner of Customs
(NS-I), Gr.I&IA
Jawaharlal Nehru Customs House
Having his office at Jawaharlal Nehru
Customs House, Nhava Sheva,
Dist - Raigad
Maharashtra. Pin - 400707 ...Respondents
Mr.Prakash Shah a/w Mr.Jas Shanghavi i/b M/s.PDS Legal for the
Petitioner
Mr.Jitendra Mishra a/w Mr.Sangeeta Yadav for the Respondents
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 4th March, 2024
_______________________
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15 WP1078-24.DOC
ORAL JUDGMENT: (PER G. S. KULKARNI, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent of the
parties.
2. This Petition under Article 226 of the Constitution of India is filed
inter alia for the reliefs that the imports in question, namely, of betelnuts /
supari described in the Petition as Menthol Scented Sweet Supari ("goods")
imported by the petitioner, be directed to be provisionally released by
respondent Nos.2 and 3 on acceptance of Provisional Duty (PD) bond,
without any security.
3. The case of the Petitioner is that she is involved in the business of
trading in such goods. Before the import of the goods, on 14 th November
2022, the Petitioner had approached the Customs Authority for Advance
Ruling, Mumbai ("CAAR") seeking classification of such goods in terms of
Section 28H of the Customs Act, 1962 ("Act, 1962"). The CAAR rendered its
ruling dated 24th February 2023 wherein the classification of the goods in
question was confirmed to be falling under CTH 21069030. Pursuant thereto,
on 5th August 2023, the Petitioner, imported a consignment of the said goods
from one M/s.Mano Agro Company Limited, Cambodia. The consignment
was received at the JNPT and was subject matter of Bill of Entry no.7215645
under which the petitioner had sought clearance of the said goods for home
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consumption. The Bill of Entry was finally assessed approving classification
under CTH 21069030.
4. On such backdrop when the petitioner requested for clearance of the
goods, it was informed to the petitioner that as a query has been raised by the
Docks Officer, the goods cannot be cleared. Between the period 25 th August
2022 to 30th August 2022, the petitioner requested the respondents to grant
permission for warehousing under section 49 of the Act, 1962. Such
permission was granted to the petitioner. The petitioner attempted to take
further steps to clear the goods, namely, on 12th October 2023, at the request of
the petitioner, respondent No.3 approached the Director, Food Safety and
Standards Authority of India (FSSAI) for verification / testing of the impugned
goods inter alia on the ground that the Petitioner had given vague description
suggesting that some processes were conducted on the impugned goods which
could not be ascertained with the naked eye and, therefore, the nature of the
mix created in the impugned goods would require verification from the FSSAI.
Pursuant thereto, the FSSAI issued its test report dated 7 th December 2023
which was provided to respondent No.3 inter alia, recording that the goods
were Split Areca Nut with mild smell of Menthol and confirmed to FSSAI
standards (Exhibit 'H'). Such opinion, as rendered by the FSSAI, which is part
of the report, reads thus:
"Opinion: On the basis of tested parameters, the Sample of Arec Nut/Betel
Nut conforms to the standard laid down under Regulation No 2.3.55 of
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Food Safety and Standards (Food Products Standards and Food Additives)
Regulation, 2011."
5. It is the petitioner's case that despite a favourable test report rendered by
the FSSAI, for almost a period of five months from the date of the imports, the
respondents did not grant clearance of the goods and in these circumstances,
the petitioner was required to approach this Court in the present proceedings,
praying for the following reliefs:
(a) 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 ordering and directing the
Respondents themselves, its officers, subordinates, servants and agents to:
(i) forthwith allow release of goods imported vide assessed Bill of
Entry No. 7215645 dated 05.08.2023 on payment of duty
applicable under the Chapter heading 21069030 of the Customs
Tariff;
(ii) to issue detention certificate for waiver of detention and all other
charges levied (viz. storage, fumigation, etc.) by the custodian on the
Petitioner in respect of the goods lying in the custom bonded
warehouse from the date of detention till the date of clearance
b) that pending the hearing and final disposal of this Petition, this Hon'ble
Court be pleased to direct the Respondent Nos. 2 and 3 to forthwith release
the goods imported by the Petitioner and covered by Bill of Entry No.
7215645 dated 05.08.2023, provisionally, on acceptance of Provisional Duty
(PD) Bond without any security or on any other terms as this Hon'ble Court
may deem fit;
6. The proceedings were listed before us on earlier occasions when a
contention was raised on behalf of the respondents, that the Department was of
the opinion that a report also be obtained from the DYCC (Deputy Chief
Chemist of Customs). Accordingly, we adjourned the proceedings on the
earlier occasion, and more particularly on 31st January 2024, recording the
statement of Mr.Mishra, learned counsel for the respondents, that the samples
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were already drawn and sent to DYCC, and that a report would soon be
provided by the DYCC. Accordingly, the DYCC's report is obtained which is
dated 8th February 2024 and is placed on record on behalf of the respondents
by an additional affidavit. The said report reads thus:
"BE NO-7215645 DT. 05.08.23
Report:-
The sample as received is in the form of cut Pieces of betel nut with few
pieces of kernel husk fragments treated with menthol, vegetable oil,
sweetening agent.
The sample u/r does not answer positive test for lime, catechu and
tobacco,
The sample u/r contains pieces of kernel husk fragment which implies
that the product may not be ready to use.
Sealed remnant returned"
(emphasis added)
7. On the basis of the said report, the deponent of the affidavit Mr.Akshay
Patil, Group 1, JNCH, has stated in paragraph 8 of the affidavit that, since the
goods are not ready to use and there is presence of kernel husk fragments, the
goods do not conform to the description of the goods as per the advance ruling
issued in the matter. Primarily, on such contention the respondents contend
that the reliefs, as prayed for by the petitioner should not to be granted.
8. On the above conspectus, we have heard the learned counsel for the
parties. With their assistance, we have also perused the record.
9. It is not in dispute that, prior to the import of the goods in question, the
Petitioner had made an application to CAAR in regard to the classification of
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the impugned goods. Such ruling was rendered on 22nd February 2023 that
the goods be classified under CTH 21069030. Pursuant thereto, the Petitioner
had made the imports in question. It is also clear that the Bill of Entry was
finally assessed approving classification as opined by the CAAR.
10. It appears that the respondent No.3 had taken steps to examine the
goods from the perspective of its human consumption before the goods are
cleared for home consumption. For such reason, after two months of the
assessment of the bill of entry on 5th August 2023, that is, on 12th October
2023, Respondent No.3 requested the Director of FSSAI for verification /
testing of the said goods. As noted above, the FSSAI had rendered its opinion,
on the basis of the samples which were drawn by the Department, that the
goods conform to the standard laid down under Regulation 2.3.55 of Food
Safety and Standards (Food Products Standards and Food Additives)
Regulation, 2011. We have perused Regulation 2.3.55, which reads thus:
"2.3.55 ARECANUTS OR BETELNUTS OR SUPARI
1. Description: (a) "Arecanuts" or "Betelnuts" or "Supari" means nuts
obtained from Areca Palm (Areca catechu L.).
(b) The product shall be dry, well matured, sound, clean, whole or cut, fully
dehusked, uniform in colour, i.e. bright shining to dull red colour.
(c) It shall be free from synthetic colouring matter and shall be free from
insect infestation, visible moulds, fissures and shrinkage and shall not be
hollow.
(d) The product shall not have any off flavour, odour or other undesirable
characteristics and shall also conform to the following standards, namely:-
S.No. Characteristics Requirements
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a. For whole nuts or supari (Damaged nuts include
blemish or chacked nuts, broken nuts, nuts not fully
behusked and those the pith of which is black)
b. For cut nuts or supari (Damaged nuts include
blemish/cracked nuts, nuts not fully dehusked and
those the pith of which is black)
(Maximum)
11. It is thus clear that the FSSAI, following the statutory mandate under
the said Regulations, had no objection to the goods being cleared for home
consumption. The Respondents, however, were not satisfied, and over and
above the FSSAI opining that the goods conform to the edible standards, as
laid down under the said regulations, respondent no.3 obtained a further
analysis of the goods from the DYCC. The DYCC accordingly tested the
sample of the said goods, and issued its report dated 8 th February 2024, which
we have noted hereinabove. The opinion of the DYCC appears to be that the
sample contains "kernel husk fragments", to record that the product "may not
be ready to use". It is interpreting such report, on behalf of the Respondents, in
the reply affidavit of Mr.Akshay Patil, it is contended that, since the goods are
not ready to use and as there is presence of kernel husk fragments, the goods
have impurities, when the report per-se does not talk about any impurity. Such
attribution of impurity is contained in paragraph 8 of the affidavit in reply
which reads thus:
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"8. The respondents say that since the goods are not ready to use and
there is presence of impurities the kernel husk fragments and the goods are cut
pieces, the goods do not conform to the description of the goods as per the
advance ruling issued in the matter."
12. This apart, the reply affidavit has further sought to raise an issue of
classification as seen from paragraph 10 thereof.
13. We may observe, that from the materials on record of the department,
there was no reason for the Respondents to discard the opinion as rendered by
the FSSAI so as to take a stance not to clear the goods for home consumption.
In our opinion, there was also no reason for the Respondents to disown or read
into the report of the DYCC as to what has actually not been provided, namely,
that there are impurities in the goods much less harmful.
14. With the assistance of the learned counsel for the parties, we examined
the issue as to what is the purport of the DYCC's report when it uses the words
"that the samples u/r contain pieces of kernel husk fragments ". It appears from
the material furnished before us by the learned counsel for the parties, and
which ought not to be in dispute that the "kernel husk" is the hard (brown)
portion of a coconut, the particles of which may get mixed when the kernel
(white edible portion inside the coconut) is grated. If the grating in a given case
is little deep, it is likely that the actual kernel is mixed with the particles of the
hard portion (skull of the coconut) which holds the kernel. It is also likely that
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some strings of the outer husk of the kernel (literally "the dry fiber part of the
coconut") can also be described to be kernel husk.
15. Thus, we do not find that there is any objectionable or any fatal impurity
which would render the goods to be labelled as prohibitory. In our opinion,
the respondents ought not to have taken such a decision that the goods should
not be granted a clearance and/or a situation is brought about that they do not
conform, to the opinion as rendered by the CAAR. In our view, in the facts of
the present case, accepting such stand, as taken on behalf of the respondents
would certainly render nugatory, the ruling of the CAAR, as also the report of
the FSSAI and the DYCC. Such stand of the department thus, cannot be
sustained.
16. In the aforesaid circumstances, the petition needs to be allowed by the
following order :
ORDER
a. The Petition is allowed in terms of prayer clause (a).
b. If applied by the petitioner, a detention certificate be issued
to the petitioners for the relevant period, within a period of three
weeks from the release of the goods.
c. Rule is made absolute in the above terms. No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
04 March, 2024
