Customs, Excise and Gold Tribunal - Mumbai
Ashapura Agro Oil Pvt. Ltd. vs Commissioner Of Customs (I) on 4 September, 2006
ORDER K.K. Agarwal, Member (T)
1. The appellants in this case have imported 215 MT of bakery shortening valued at Rs. 15.81 lakhs and filed a bill of entry for its clearance. Being a food article, bakery shortening imported by them has to conform to the standards of hydrogenated vegetable oil (vanaspati ghee) as per the Prevention of Food Adulteration Act, 1954 (PFA Act, 1954) which prohibits imports of adulterated misbranded goods into India. Representative samples were drawn and sent for testing to Central Food Laboratory, Pune by Port Health Organization. The Port Health Officer informed that the result of the analysis shows that the samples do not conform with the standards of hydrogenated vegetable oil (vanaspati ghee) as per PFA Rules, 1954. Accordingly the goods were confiscated and allowed to be released on payment of Rs. 40,000/-for the purpose of re-export only. A penalty of Rs. 10,000/- was also imposed on the appellant.
2. The learned advocate for the appellants submits that as per the test report the sample meets all the requirements of the PFA Act and the test failed only in respect of baudouin test which was negative. It was submitted that the goods were otherwise fit for human consumption and mere failure of the baudouin test should not result in confiscation of goods and the goods should be allowed to be released. Reliance in this regard was placed on the decision of the Bombay High Court in the WP No. 2325/2006 filed by Rich Kwality Products Pvt. Ltd. and Anr. Wherein under similar circumstances, where the sample failed in baudouin test but were otherwise found not to be adulterated or not fit for human consumption, were allowed clearance by the Bombay High Court.
3. The learned DR submits that in this case the goods were not allowed clearance because No Objection Certificate was not received from the Port Health Officer which is mandatory and therefore the goods are correctly held to be liable for confiscation and not allowed clearance for home consumption.
4. We have considered the submissions. We find that from the test report it is apparent that the sample did not conform to the specifications provided under the PFA Act only in respect of baudouin test and, therefore, the facts are similar to the decision of the Bombay High Court cited supra. However, we find that in the case of Bombay High Court decision, a specific clarification was sought from the Port Health Officer as to whether the consignment was adulterated or not and whether these were fit for human consumption or otherwise and no adverse report was sent by the Port Health Officer on these aspects. Further, the Director, CFL, Pune, in his affidavit admitted that the samples meet the prescribed standards of vanaspati ghee for moisture, melting point, unsaponifiable matter, free fatty acids, vitamin A, and rancidity. He has also stated in his affidavit that the specific tests for adulterants viz. synthetic colour, argemone oil and animal fat were found negative. No such certificates are forthcoming in the present case. We therefore remand the matter back to the original adjudicating authority with a direction that he should seek similar clarification from Port Health Officer and CFL, Pune, to ensure that the goods are not adulterated and are fit for consumption and if such certificates are furnished then the goods should be allowed to be cleared after adjudication. Since it is reported that vanaspati has a short shelf life and likely to deteriorate the above certificates should be obtained within one month of the receipt of this order.
5. Appeal is allowed by way of remand.