The Single Bench of the Delhi High Court in the case of Aromatrix Flora Pvt Ltd vs Union of India & Ors. consisting of Justice Yashwant Varma opined that FSSAI is under the obligation of ensuring that all imported articles of food are inspected with due expedition and promptitude.
Facts
This writ petition was filed seeking direction for FSSAI to collect the samples of imported food articles and issue the test reports, within the free period provided by the Ministry of Civil Aviation, Union of India i.e., 48 hours of goods being stored at the Custodian warehouse. It was essentially aggrieved by the alleged delay caused by FSSAI in the grant of a No-Objection Certificate for clearance of imported goods resulting in prohibitive demurrage charges coming to be levied.
Contentions Made
Petitioner: It contended that u/s 47(5) of the Food Safety and Standards 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 also contended that FSSAI had on innumerable occasions caused delay in the grant of the NOC resulting in the petitioner being foisted with huge liabilities towards demurrage charges. It also contended that as per the Customs Act, 1962 the procedure for clearance of imported goods in Chapter VII of the same places an embargo on all imported goods unloaded in a customs area from being released for home consumption. It further contended 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.
Respondent: It was contended that the free period which is 48 hours from the touchdown of the aircraft after which demurrage charges can be imposed is a regulatory measure adopted by the said respondent to address issues of piling up of cargo and congestion in the warehouses at airports. It was also contended that since the goods while stored in the warehouse are held in the custody of the custodian, it is bound to ensure the safety and security of the stored articles. It was also contended that no permission as such was sought by the petitioner for moving the articles from the custodian warehouse to a public warehouse.
Observations of the Court
The Bench noted that the articles which were imported in this case were hops, an ingredient used for providing a bitter flavour to beer. The article was thus liable to be duly inspected and cleared by FSSAI before it could be released for home consumption. Food Safety and Standards (Import) Regulations, 2017 talked about the way imported food articles were to be inspected and NOCs granted. It also observed that as per Regulation 9(12) contained therein, upon due analysis of the imported food article the Food Analyst shall forward his report within 5 days to the authorized officer apprising him whether the product was conforming or non-conforming. Only thereafter it would be permissible for an importer to seek the release of the imported food articles for home consumption.
From the submissions of parties it was noted that none of them question the permissibility of the movement of imported articles from a custodian warehouse to a public warehouse. It also noted that no provision, statutory or otherwise, prohibited such a choice being exercised by an importer.
Judgment
The Bench opined that in principle it would be permissible for an importer to apply to the competent authority of Customs to be granted the permission to move articles from a custodian warehouse to a public warehouse, which would enable it 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. Moreover, considering the unanimous position of respondents 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, it opined that all that would need to be observed is that FSSAI would not refuse inspection merely on the ground that the goods are stored in a public warehouse.
Case: Aromatrix Flora Pvt Ltd vs Union of India & Ors.
Citation: W.P.(C) 3884/2020
Bench: Justice Yashwant Varma
Decided on: 27th September 2022
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