{"id":199379,"date":"2011-01-17T00:00:00","date_gmt":"2011-01-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-vs-union-on-17-january-2011"},"modified":"2017-07-23T15:48:25","modified_gmt":"2017-07-23T10:18:25","slug":"n-vs-union-on-17-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-vs-union-on-17-january-2011","title":{"rendered":"N vs Union on 17 January, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
N vs Union on 17 January, 2011<\/div>\n
Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/15744\/2010\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 15744 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMS.JUSTICE HARSHA DEVANI  \nHONOURABLE\nMR.JUSTICE H.B.ANTANI\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nN\nK PROTEINS LIMITED & 1 - Petitioner(s)\n \n\nVersus\n \n\nUNION\nOF INDIA - THROUGH SECRETARY & 4 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nKAMAL TRIVEDI, SR. ADVOCATE for M\/S TRIVEDI & GUPTA\nfor Petitioners \nNOTICE\nNOT RECD BACK for Respondent(s) : 1, 3, \nMR RJ OZA for\nRespondent(s) : 2,4 - 5. \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE HARSHA DEVANI\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/01\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MS.JUSTICE HARSHA DEVANI)<\/p>\n
\tThe
\n\tlearned advocate for the petitioner has tendered a draft amendment.
\n\tThe amendment is allowed in terms of the draft. The same shall be
\n\tcarried out forthwith.\n<\/p>\n
\tRule.\n<\/p>\n
\t Mr. R. J. Oza, learned Senior Standing Counsel, waives service of
\n\tnotice of rule on behalf of the respondents.\n<\/p>\n
\tConsidering
\n\tthe nature of the controversy involved in the present case, the
\n\tpetition was taken up for final hearing and is finally disposed of
\n\tby this judgment.\n<\/p>\n
\tBy
\n\tthis petition, the petitioner, a Public Limited Company, seeks the
\n\tfollowing substantive relief:\n<\/p>\n
“[10]\t\tUnder
\nthe circumstances, petitioners most respectfully pray that:\n<\/p>\n
[A]\t\tYour
\nLordships may be pleased to issue a writ of mandamus or a writ in the
\nnature of mandamus or any other writ, order or direction, quashing
\nDetention Memo No.1\/2010-11 dated 19.9.2010 (Annexure-G) and Seizure
\nMemo dated 29.9.2010 (Annexure-H);\n<\/p>\n
[A-1]\t\tYour
\nLordships may be pleased to issue a writ of mandamus or a writ in the
\nnature of mandamus or any other appropriate writ, order or direction,
\ndirecting the respondents, their servants and agents for release of
\nthe goods in question for reprocessing the same on such terms and
\nconditions as this Hon’ble Court deems fit and proper and after
\nreprocessing the same, be permitted to clear the goods for home
\nconsumption after carrying out legal requirements, inclusive of test.\n<\/p>\n
[B]\t\tYour
\nLordships may be pleased to issue an appropriate writ, order or
\ndirection, directing the respondents No.2 to 5 to decide
\nrepresentations for provisional release of goods imported vide Bill
\nof Entry No.000198 dated 6.8.2010, Kandla Port;”\n<\/p>\n
\tThe
\n\tfacts of the case as appearing in the petition are that the
\n\tpetitioner company in the regular course of its business, entered
\n\tinto a contract with M\/s PEC Limited for the purchase of 5,000 MT
\n\t+\/- 2% “Cottonseed Oil of Edible Grade” (fit for human
\n\tconsumption after further refining) on high seas sale basis.  On
\n\tarrival of the cargo at Kandla Port, the petitioner company filed
\n\tBill of Entry No.000198 dated 6.8.2010. Since the cargo was not
\n\tbeing released, the petitioner furnished a PD bond for provisional
\n\tassessment and release of the goods in question.  The petitioner, in
\n\tits letter dated 4.9.2010 addressed to the Customs Department,
\n\tstated that after the cargo is released, the same would be refined
\n\tat its factory under the custody of the Central Excise authorities.
\n\tThe petitioner also undertook that after confirmation of test
\n\tresults of samples, which would be forwarded subsequent to the
\n\trefining, to the effect that the same meets with standards laid down
\n\tunder the PFA, the goods in question would be released for human
\n\tconsumption. The Bill of Entry filed by the petitioner was assessed
\n\tprovisionally pending the test reports for confirmation from the
\n\tCentral Excise as per PFA standards on 13.9.2010. Thereafter, the
\n\tpetitioner company requested the Customs Department to allow
\n\trefining of the goods at its plants.  Subsequently, the petitioner
\n\tcompany received a copy of a letter dated 16.9.2010 addressed by the
\n\tAssistant Commissioner (Group-1), Kandla, to the concerned Central
\n\tExcise authorities, where the plants of the petitioner are situated.
\n\tIn the said letter, a reference to the test report given by the Port
\n\tHealth Officer, Kandla, on the samples drawn had been made in the
\n\tfollowing terms:\n<\/p>\n
“PHK\/E\/131
\nto 134\/2010 DOES NOT CONFORM to the standards & provisions as
\nlaid down under the Prevention of the Food Adulteration Rules, 1955,
\nfor Cottonseed Oil on account of Acid Value of 0.65% (0.5).  On
\ndiscussion with the Chief Technical Officer, CFL, Pune, the oil can
\nbe used for human consumption, only after proper & thorough
\ncleaning, refining & conforming to the standards as laid under
\nthe item A-17 15 of PFA Rules, 1955, during this period the cargo
\nmust be under the custody of the Customs and Central excise. On
\ncompletion of the refining, a sample has to be sent for analysis and
\non conformation to the PFA standards, the cargo must be released for
\nhuman consumption.”\n<\/p>\n
Thereafter,
\nthere is a reference to the contents of the petitioner’s letter
\ndated 14.9.2010 after which it is stated thus:\n<\/p>\n
“It
\nis therefore requested to ensure that the following step at your end:\n<\/p>\n
“[i]\tTo
\nensure that cargo released from Kandla is reached at the declared
\nplant having relevant Central Excise Jurisdiction thereon, cargo must
\nbe stored separately.\n<\/p>\n
[ii]\tTo
\ndraw the sample of the refined cargo and send to Director, CFL,
\nVadodara for testing purpose, intimating this office.\n<\/p>\n
[iii]\tOn
\nreceipt of the report from CFL, Vadodara, confirming the standards
\nlaid down in Prevention of the Food Adulteration Rules, 1955, the
\ncargo may be released by Central Excise Authorities.\n<\/p>\n
[iv]\tReport
\nmay be sent to this office.”\n<\/p>\n
In
\nthe footnote to the said letter, the petitioner company was directed
\nto follow the instructions and release the cargo only after
\nconfirmation from Central Excise Authorities\/customs, and that final
\nassessment only could be done after conformation with the PFA
\nstandards.\n<\/p>\n
\tOut
\n\tof the entire cargo imported, the petitioner company lifted 135.950
\n\tMT for refining the same at its plant at Thor, District Mehsana.
\n\tVide letter dated 18.9.2010, the Customs Department directed the
\n\tpetitioner company to stop the delivery of cargo lifted till further
\n\torder. Vide Detention Memo No.1\/2010-11, the officers of Central
\n\tExcise Department, Kadi detained the cargo which was lifted on
\n\t19.9.2010 after which, the Directorate of Revenue Intelligence
\n\t(DRI), Gandhidham drew 12 samples of the said cargo and prepared a
\n\tpanchnama in that regard on 22.9.2010. Subsequently, by a
\n\tcommunication dated 23.9.2010 issued by the Customs Department to
\n\tthe Central Excise authorities, a copy whereof was forwarded to the
\n\tpetitioner company, it was stated that further progress in the
\n\tmatter should not be allowed and there should be no further receipt
\n\tof the cargo till further orders from DRI. Thereafter, the balance
\n\tquantity of the entire cargo, being 4867.222 MT, came to be seized
\n\tby the DRI on 29.9.2010 under the provisions of section 110 of the
\n\tCustoms Act, 1962 (the Act). Since the petitioner company was in
\n\tdire need of the goods in question as a huge amount of capital was
\n\tblocked for the purpose of procuring the same as well as in view of
\n\tthe fact that the goods were of perishable nature, the petitioner
\n\taddressed a representation dated 4.10.2010 to the respondent
\n\tNo.4-Additional Director General, Directorate of Revenue
\n\tIntelligence, with a copy to the respondent No.2-Commissioner of
\n\tCustoms, Kandla, requesting for release of the seized cargo on such
\n\tterms and conditions as may be deemed fit pending inquiry into the
\n\tmatter.  Subsequently, further representations and written
\n\tsubmissions were made explaining that serious problems were likely
\n\tto be caused due to delay in release of the goods in question and
\n\tthat irreparable financial loss running into crores of rupees was
\n\tbeing caused to the petitioner company.  Subsequently, the DRI
\n\tadvised the petitioner company to deposit the entire differential
\n\tamount pertaining to the goods in question being Rs.1,62,96,312\/-
\n\tpursuant to which, the petitioner company deposited the said amount
\n\ton 11.10.2010.  Similarly, the petitioner company deposited the
\n\tentire amount of differential amount of Rs.1,74,00,112\/- in relation
\n\tto goods imported in the year 2009 as directed by the DRI.
\n\tThereafter, various representations were made reiterating the
\n\thardships caused to the petitioner. However, since the
\n\trepresentations remained unattended, the petitioner has moved the
\n\tpresent petition seeking the relief noted hereinabove.\n<\/p>\n
\t In
\n\tresponse to the petition, an affidavit in-reply has been filed on
\n\tbehalf of the respondent No.5 Additional Director, Directorate of
\n\tRevenue Intelligence, Gandhidham, controverting the averments made
\n\tin the petition. It is stated that on detailed inquiry,
\n\tinvestigation and re-testing of the samples taken by the DRI, it is
\n\trevealed that the goods under seizure are “Refined Cottonseed
\n\tOil of Non-Edible Grade”. It is stated that a show cause
\n\tnotice dated 14.12.2010 has been issued to the petitioner pursuant
\n\tto the seizure and inquiry.  That the Port Health Officer, Kandla
\n\thad drawn four representative samples from four different
\n\tcompartment vessels and sent the same to the Food & Drugs
\n\tLaboratory, Vadodara, which had issued four test reports, stating
\n\tthat the samples do not conform to the standards and provisions laid
\n\tdown under the PFA Rules for Cottonseed Oil on account of iodine
\n\tvalues being more than the prescribed limit and very low acid value
\n\tin comparison to other cottonseed oil. Thereafter, counter part
\n\tsamples were sent to the Central Food Laboratory, Pune, and the
\n\tresult of the analysis of the Central Food Laboratory, Pune,
\n\tindicates that the samples do not conform to the standards and
\n\tprovisions laid down under the Prevention of Food Adulteration
\n\tRules, 1955 (PFA Rules), for cottonseed seed oil on account of high
\n\tacid values. According to the respondents, the petitioners had
\n\tintentionally declared the goods as “fit for human consumption
\n\tafter further refining” to show that the imported goods were
\n\tof non-edible grade and would be made edible after further refining
\n\tand to avail of the benefit of Circular No.29\/97-Cus dated
\n\t31.07.1997 which defines the term “vegetable oils of edible
\n\tgrade” as the vegetable oils which are fit for human
\n\tconsumption at the time of import and the vegetable oils which are
\n\tfit for human consumption after further processing. It is also
\n\tstated that the test reports issued by the Central Excise &
\n\tCustoms Laboratory, Vadodara, and the Customs Laboratory, Kandla,
\n\tshowed that the subject goods were Refined Cottonseed Oil of Edible
\n\tGrade and that gross variation was found in respect of acid values
\n\tof the subject goods determined by the Food & Drugs Laboratory,
\n\tVadodara and Central Food Laboratory, Pune. That counter part sample
\n\tdrawn under panchnama dated 22.9.2010 was sent to Central Food
\n\tLaboratory, Pune, for re-testing and vide report dated 24.10.2010,
\n\tit was found that the sample contained higher iodine value and
\n\tBellier Test was less than 19.0 Degree Centigrade and hence, the
\n\tsame did not conform to the standards of Cottonseed Oil as per PFA
\n\tRules. It is, accordingly, stated that in the light of the said test
\n\treport, it is amply clear that the subject goods are “Refined
\n\tCottonseed Oil of Non-Edible Grade”.\n<\/p>\n
\t In
\n\treply to the submission that the representations made by the
\n\tpetitioner have not been decided, it is stated that pursuant
\n\tto the interim order of this Court in Special Civil Application
\n\tNo.12386 of 2006 filed by M\/s Teej Impex Pvt.Ltd., the CBEC, New
\n\tDelhi, had issued Circular No.28\/2006-Cus., dated 6.11.2006, in
\n\tconsultation with the Ministry of Health & Family Welfare,
\n\tinstructing that all the consignments of edible\/food products which
\n\tfail PHO testing shall be re-exported or destroyed and permission
\n\tfor re-processing should not be allowed suo
\n\tmotu
\n\tby the Commissioners. In view of the said instructions, the Customs
\n\tauthorities do not have any discretionary power to grant provisional
\n\trelease of the edible\/food products, which fail the PHO testing.
\n\tTherefore, the Department could not accede to the
\n\tvarious representations made by the petitioner for grant of
\n\tprovisional release of the goods in question.\n<\/p>\n
\t Mr.\n<\/p>\n
\tK. B. Trivedi, Senior Advocate, learned counsel for the petitioner
\n\tinvited attention to the various reports which have been received by
\n\tthe concerned authorities in relation to the samples taken by them,
\n\tto submit that there are wide variations in the different reports.
\n\tWhereas, the initial inquiry reports state that the goods are
\n\trefined Cottonseed Oil (Edible Grade) which conform to the PFA
\n\tstandards, subsequent reports of the Central Food Laboratory, Pune,
\n\tindicate that the goods in question do not meet with the PFA
\n\tstandards. It was submitted that in the show cause notice, the
\n\trespondents have come out with a new case that the goods are Refined
\n\tCottonseed Oil of Non-Edible Grade, whereas none of the reports in
\n\tquestion indicate that the goods in question are of Non-Edible
\n\tGrade.\n<\/p>\n
\tInviting
\n\tattention to the unreported decision of this Court in the case of
\n\tM\/s Teej Impex Pvt. Ltd., through Shri Vijay Joshi, Commissioner of
\n\tCustoms and others, rendered on 4.12.2006 in Special Civil
\n\tApplication No.12386 of 2006, it was submitted that in a similar set
\n\tof facts, this Court has granted permission for re-processing the
\n\tgoods by issuing certain directions taking care of the interests of
\n\tthe revenue. It was submitted that the facts of the present case
\n\tbeing similar to the facts of the said case, similar directions are
\n\trequired to be issued to the respondents subject to such conditions
\n\tas may be deemed fit by this Court. Various other contentions have
\n\tbeen also been advanced as regards the variations in the reports of
\n\tdifferent laboratories as well as the provisions of the Prevention
\n\tof Food Adulteration Act, 1954 (PFA Act) and the Rules framed
\n\tthereunder.  However, considering the view that the Court is
\n\tinclined to take in the matter, it is not necessary to set out the
\n\tsaid contentions in detail.\n<\/p>\n
\tThe
\n\tpetition was opposed by Mr. R. J. Oza, learned Senior Standing
\n\tCounsel appearing for the respondents, who invited attention to the
\n\taverments made in the affidavit in-reply as well as the reports
\n\tsubmitted by the Central Food Laboratory, Pune and more
\n\tparticularly, the last report dated 24.10.2010 of the Director,
\n\tCentral Food Laboratory, Pune, which indicates that iodine value is
\n\thigher than the limit prescribed under the PFA Rules and Bellier
\n\ttest is lower than the limit prescribed under the said Rules. It was
\n\tsubmitted that the reports indicate that the goods in question are
\n\trefined cotton seed oil and considering the iodine content of the
\n\tgoods in question, the goods are non-edible in nature, inasmuch as
\n\tfood which has a high iodine content and even otherwise does not
\n\tmeet with the PFA standards, cannot be said to be of edible grade.
\n\tInviting attention to the provisions of sub-section (3) of section
\n\t13 of the PFA Act, it was submitted that the certificate issued by
\n\tthe Director of Central Food Laboratory under sub-section 2B
\n\tsupersedes the report given by the public analyst under sub-section
\n\t(1) and as such, the report of the Central Food Laboratory, Pune,
\n\twould supersede all other reports and therefore, is the only report
\n\ton which reliance can be placed. It was submitted that the subject
\n\tgoods being non-edible and having failed on PFA parameters, cannot
\n\tbe released provisionally in the light of Circular No.28\/2006-Cus.
\n\tdated 6.11.2006 issued by the Government of India, Ministry of
\n\tFinance, Department of Revenue, Central Board of Excise &
\n\tCustoms.  Referring to the contents of the said Circular, it was
\n\tsubmitted that in the present case, the food articles in question
\n\thaving been imported in the country and not found to be conforming
\n\tto the prescribed standards, the customs authority suo motu would
\n\tnot be in a position to release the food articles for re-processing.
\n\t In the light of the Circular No.58\/2001-Cus. Dated 25.10.2001, all
\n\tthe consignments of edible\/food products, which fail on PHO testing,
\n\tare required to be re-exported or destroyed. Hence, only
\n\tconsignments of edible\/food products which conform to the provisions
\n\tof Prevention of Food Adulteration Act, 1954 and the Rules made
\n\tthereunder are allowed to be imported into India and the
\n\tconsignments which do not conform to the provisions of the PFA Act
\n\tand the PFA Rules are required to be dealt with in the manner
\n\tprescribed in Circular No.58\/2001-Cus. Dated 25.10.2001 and as such,
\n\tthe goods in question are required to be re-exported or destroyed.\n<\/p>\n
\tDealing
\n\twith the last contention, Mr. K.B. Trivedi, learned counsel placed
\n\treliance upon a decision of the Bombay High Court in the case of
\n\tCommissioner
\n\tof Customs (Import), Raigad v. Amrit Banaspati Co. Ltd.,<\/a>
\n\t2007 (218) ELT 336 (Bom.) wherein the Court has held that the fact
\n\tthat section 18 of the PFA Act empowers the Court to allow clearance
\n\tof the domestic goods subject to reprocessing, cannot be a mere
\n\tground to hold that the Tribunal constituted under the Customs Act
\n\tcannot allow redemption of confiscated goods subject to
\n\treprocessing. It was held that in the absence of any bar under the
\n\tCustoms Act or the PFA Act, the Tribunal in
\n\tan appropriate case is entitled to allow redemption of confiscated
\n\tgoods subject to reprocessing. It was accordingly, submitted that
\n\tthere is no bar to the Court allowing release of the goods subject
\n\tto reprocessing.\n<\/p>\n
\tInsofar
\n\tas the contention raised by the revenue by placing reliance upon
\n\tsub-section (3) of section 13 of the Act is concerned, it was
\n\tsubmitted that the said provision would be applicable only in case
\n\twhere a sample has been sent to the concerned Central Food
\n\tLaboratory by the Court as contemplated under sub-section (2) of the
\n\tsaid provision. That in the facts of the present case, the said
\n\tprovision would not be applicable. Further, inviting attention to
\n\tthe provisions of section 6 of the PFA Act, it was pointed out that
\n\tthe present case falls within the ambit of sub-section (1) of
\n\tsection 6 of the Act and as such, the laboratory specified for the
\n\tpurpose of carrying out the functions under the Act would be the
\n\tCentral Food Laboratory, Mysore, as provided under Table-I below
\n\tRule 3 of the PFA Rules and that the Central Food Laboratory, Pune,
\n\twhich finds place in Table-II below Rule 3 of the Rules is a
\n\tlaboratory specified for the purposes of sub-section (2) of section
\n\t6 of the Act.\n<\/p>\n
\tOn
\n\ta perusal of the averments made in the petition as well as
\n\tconsidering the submissions made by the learned counsel for the
\n\tpetitioner, it is apparent that the main relief claimed in the
\n\tpetition is that the goods in question be permitted to be
\n\treprocessed and released subject to their conforming to the PFA
\n\tstandards on such conditions as may be deemed fit by this court.
\n\tReliance is placed upon the decision of this High Court in the case
\n\tM\/s Teej Impex Pvt. Ltd. (supra) wherein the Court in a case where
\n\tthe Hydrogenated Vegetable Oil (Vanaspati Ghee) was found to be not
\n\tconforming to the standards of vanaspati as per PFA Rules, and there
\n\twere conflicting reports, one stating that the goods conformed to
\n\tthe PFA Rules and another stating that the same did not conform to
\n\tthe PFA Rules, upon considering the perishable nature of the goods
\n\tas well as the fact that the confiscated goods which were worth
\n\tcrores of rupees, could be destroyed, and nobody would be benefited
\n\tby it, took support of the above referred Circular No.28\/2006 and
\n\tpermitted reprocessing of the goods subject to certain conditions.
\n\tThe Court took care to ensure that firstly there was an expert
\n\topinion to the effect that after reprocessing the vanaspati ghee
\n\twould be fit for human consumption conforming to the standards laid
\n\tdown in the PFA Rules.\n<\/p>\n
\tIn
\n\tthe aforesaid backdrop, examining the facts of the present case, a
\n\tperusal of the various reports given by the different laboratories
\n\tindicates that there are wide variations in the reports received
\n\tfrom different laboratories. The Chemical Examiner, Customs
\n\tLaboratory, Kandla, gave his test report dated 12.08.2010 stating
\n\tthat the goods in question were cotton seed oil having acid value =
\n\t0.04 and Iodine value =108.8. The report dated 12.08.2010 of the
\n\tGujarat Laboratory is to the effect that the sample conforms with
\n\tprescribed quality in respect of PFA Rules. The test reports of the
\n\tFood & Drugs Laboratory, Vadodara, dated 12.8.2010 indicate that
\n\tthe sample is edible oil falling under Item No.A.17.02 of the PFA
\n\tRules. The report further says that the sample does not conform to
\n\tthe standards and provisions laid down under the PFA Rules in
\n\trespect of iodine value. (The iodine value ranges from 113.85 to
\n\t115.23, the normal range being 98 to 112.) As per the said report
\n\tthe result of analysis of sample also shows very low acid value in
\n\tcomparison of other crude cottonseed oil. The test reports of the
\n\tCentral Food Laboratory, Pune, dated 21.8.2010 are to the effect
\n\tthat the sample does not conform to the standards of cottonseed oil
\n\tas per the PFA Rules. The test reports indicate that the acid value
\n\tis higher than permissible. Pursuant to the aforesaid reports of the
\n\tCFL, Pune, the Port Health Officer, Kandla has forwarded
\n\tcommunication dated 30.8.2010 to the Commissioner of Customs, Kandla
\n\tPort, wherein it is stated that the Director, CFL, Pune, is of the
\n\topinion that the sample does not conform to the standards and
\n\tprovisions as laid down under the Prevention of Food Adulteration
\n\tRules, 1955 for Cottonseed Oil on account of Acid Value of 0.65%
\n\t(0.5). On discussion with the Chief Technical Officer, CFL, Pune,
\n\tthe oil can be used for human consumption, only after proper and
\n\tthorough cleaning, refining and conforming to the standards as laid
\n\tdown under the Item A-17.15 of PFA Rules, 1955.  During this period,
\n\tthe cargo must be under the custody of Customs and Central Excise.
\n\tOn completion of the refining, a sample has to be sent for analysis
\n\tand on conformation to the PFA standards, the cargo must be released
\n\tfor human consumption. The test reports of the Chemical Analyzer,
\n\tCentral Excise & Customs Laboratory, dated 29.9.2010 indicate
\n\tthat the values obtained for the sample are within the limits
\n\tmentioned for Cottonseed Oil Refined Grade (Edible Grade). There are
\n\tno deviations observed in the standards prescribed under the PFA Act
\n\tfor refined edible grade cottonseed oil. The test reports of the
\n\tChemical Examiner, Grade I, Customs House Laboratory, Kandla,
\n\tindicate that the sample does not require further refining or other
\n\ttreatment to make it edible, because other tested parameters already
\n\tare in the range of refined cottonseed oil of edible grade as per
\n\t17.15 of Appendix-B of the PFA Act, 1954. It is further stated in
\n\tthe note that all the parameters of sample are already in the
\n\tmandatory limit of refined cottonseed oil of edible grade as per PFA
\n\tAct, 1954. Therefore, this product does not require further
\n\trefining\/ treatment in order to fulfill any further mandatory
\n\trequirement of PFA quantitatively. The certificate of analysis dated
\n\t24.10.2010 of the Director, Central Food Laboratory, indicates that
\n\tthe sample shows iodine value more than 112.0, Bellier test less
\n\tthan 190 degree centigrade and hence, does not conform to the
\n\tstandards of cottonseed oil as per PFA Rules as per tests performed.
\n\t(The iodine value indicated in the said report is 114.78).\n<\/p>\n
\tAs
\n\tnoted hereinabove, the certificate of analysis issued by the
\n\tDirector, Central Food Laboratory, Pune, indicates that Iodine value
\n\tis more than 112.0 and that Bellier test is less than the prescribed
\n\tstandard. However, from the said report it is not clear as to
\n\twhether the goods in question are of non-edible grade, as is sought
\n\tto be contended on behalf of the respondents, or as to whether the
\n\tgoods can be made fit for human consumption upon reprocessing. In
\n\tsupport of the contention that the goods in question are of
\n\tnon-edible grade, the learned Senior Standing Counsel for the
\n\trespondents has placed reliance upon various parameters provided
\n\tunder the Prevention of Food Adulteration Rules, to submit that
\n\tsince the sample does not meet with the requirements laid down there
\n\tunder, the same are of non-edible grade. However, since show cause
\n\tnotice has already been issued to the petitioner and dealing with
\n\tthe said contention would amount to touching the merits of the case,
\n\tthe Court has refrained from dealing with the said contention.\n<\/p>\n
\tAs
\n\tnoted hereinabove, the record of the case as placed before this
\n\tCourt by way of affidavit in reply of the respondent No.5 makes it
\n\tamply clear that there are conflicting reports of different
\n\tlaboratories and wide variations in the reports. The goods in
\n\tquestion, by their very nature are perishable goods and as such if
\n\tthe same are retained in the same state till the pendency of the
\n\tproceedings before the concerned authorities, the goods would be
\n\tlikely to spoil. Considering the quantity and the cost of the
\n\tsubject goods, if the goods are detained for a long period the same
\n\twould cause immense financial loss to the petitioner and would not
\n\tbenefit any party. In the circumstances, the Court is of the view
\n\tthat the interests of justice would be served by following the
\n\tdecision of this High Court in the case of M\/s Teej Impex Pvt. Ltd
\n\tand disposing of the petition in the terms mentioned hereinafter and
\n\tgranting permission for re-processing of goods after obtaining an
\n\texpert’s opinion as to whether after re-processing, the goods in
\n\tquestion will be fit for human consumption conforming to the
\n\tstandards as laid down under the Food Adulteration Rules, 1955.
\n\tMoreover, as regards the Central Food Laboratory to which the sample
\n\tshould be sent for testing is concerned, on a perusal of the
\n\tprovisions of sub-rule (2) of Rule 3 of the PFA Rules, this Court is
\n\tof the view that as to whether the Central Food Laboratory, Pune,
\n\tis a laboratory specified for the purposes of subsection (1) of
\n\tsection 6 of the PFA Act is a matter of interpretation, whereas the
\n\tCentral Food Laboratory, Mysore, clearly is a laboratory specified
\n\tfor the purposes of sub-section (1) of section 6 of the PFA, Act. In
\n\tthe circumstances, without delving into the question as regards
\n\twhether or not the Central Food Laboratory, Pune is a Laboratory
\n\tspecified for the purposes of sub-section (1) of section 6 of the
\n\tPFA Act, the ends of justice would be met if the  samples are sent
\n\tfor testing to the Central Food Laboratory, Mysore, as specified
\n\tunder Table-I of Rule 3 of the PFA Rules.\n<\/p>\n
\tIn
\n\tthe aforesaid facts and circumstances of the case, the petition is
\n\tdisposed of in the following terms:\n<\/p>\n
\tThe
\nrespondents-authorities
\nare directed as under:\n<\/p>\n
\tTo
\n\tsend samples of the subject goods seized to the Central Food
\n\tLaboratory, Mysore for testing for opinion as to whether, after
\n\tre-processing, the goods in question will be fit for human
\n\tconsumption conforming to the standards of cottonseed oil prescribed
\n\tin the Prevention of Food Adulteration Rules, 1955. This shall be
\n\tdone within one week from the date of receipt of this order. The
\n\tLaboratory shall submit report within one week on receipt of the
\n\tsample.\n<\/p>\n
\tOn
\n\treceipt of the report, if the report is in the affirmative, i.e.,
\n\tthe Laboratory finds that, after re-processing, the goods will be
\n\tfit for human consumption conforming to the standards of cottonseed
\n\toil prescribed in the Prevention of Food Adulteration Rules, 1955,
\n\tthen the petitioner shall be permitted to reprocess the goods within
\n\tone week from the date of receipt of the report.\n<\/p>\n
\tAfter
\n\treprocessing of the goods, the respondents shall send samples of the
\n\tre-processed goods again to the Central Food Laboratory, Mysore ,for
\n\ttesting as to whether the re-processed goods are fit for human
\n\tconsumption conforming to the standards of cottonseed oil prescribed
\n\tin the Prevention of Food Adulteration Rules, 1955. The Laboratory
\n\tshall submit report within one week of the receipt of the sample. If
\n\tthe Laboratory submits the report in favour of the petitioner, the
\n\tgoods shall not be detained on this ground and shall be released in
\n\taccordance with law;\n<\/p>\n
\t If
\n\teither of the reports is against the petitioner, then the
\n\trespondents shall take appropriate steps under the provisions of the
\n\tCustoms Act.\n<\/p>\n
\t With
\n\tthe aforesaid directions, this petition stands disposed of.\n<\/p>\n
\tIt
\n\tis clarified that the aforesaid directions shall be without
\n\tprejudice to the rights of either of the parties in the adjudication
\n\tproceedings and the release of goods pursuant to the aforesaid
\n\tdirections shall be subject to the final order that may be passed in
\n\tthe adjudication proceedings.\n<\/p>\n
\t  Since
\n\tthe aforesaid directions have been issued merely to obviate the
\n\thardships that could be caused to the petitioner on account of an
\n\tirreversible situation arising in case the petitioner finally
\n\tsucceeds in the adjudication proceedings, it is clarified that the
\n\tpetitioner shall not claim any equity based on this order.\n<\/p>\n
Direct
\n\tservice is permitted.\n<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
[H.B.ANTANI,
\nJ.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court N vs Union on 17 January, 2011 Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print SCA\/15744\/2010 17\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15744 of 2010 For Approval and Signature: HONOURABLE MS.JUSTICE HARSHA DEVANI HONOURABLE MR.JUSTICE H.B.ANTANI ========================================= 1 Whether Reporters […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-199379","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nN vs Union on 17 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-vs-union-on-17-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N vs Union on 17 January, 2011 - 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