Customs, Excise and Gold Tribunal - Mumbai
Sachin Agarwal vs Commissioner Of Customs (I) on 4 September, 2006
ORDER K.K. Agarwal, Member (T)
1. The appellants in this case have imported 295 MT of hydrogenated vegetable oil valued at Rs. 99.76 lakhs and filed bills of entry for its clearance. Since hydrogenated vegetable oil is a food article, clearance of the same requires a no objection certificate from the Port Health Officer, who has to certify that the goods were not adulterated, mis-branded and conform to the specifications laid down for hydrogenated vegetable oil as per the Prevention of Food Adulteration Act, 1954 (PFA Act, 1954). Accordingly samples were drawn and sent for testing to Central Food Laboratory, Pune by the Port Health Organisation. The Port Health Officer informed that the results of the analysis shows that the sample does not conform to the standards of hydrogenated vegetable oil and the test result showed that the melting point of the sample was lower than the one prescribed under the PFA Act. On directions of Bombay High Court another sample was drawn and sent to CFL, Calcutta. The test report received from CFL, Calcutta indicated that the sample failed in baudouin test which was below the prescribed limit. As per the opinion of the CFL the sample was adulterated as well as misbranded. On the basis of this report the consignment was not allowed for clearance for home consumption and the goods were confiscated with an option to redeem the same on payment of fine of Rs. 1 lakh for the purpose of re-export only and a penalty of Rs. 25,000/-was also imposed on the appellant.
2. The learned Advocate for the appellants submits that the goods have been confiscated on the ground that they do not conform to the specifications laid down under the PFA Act and as per the first report it did not meet the prescribed melting point while as per the second report it did not meet the baudouin test as it was found to be less than the minimum prescribed limit. He submitted that the consignment was fit for human consumption and that they have offered to reprocess the goods and sought permission to clear the same after reprocessing if the same were found to conform to the specifications laid down under the PFA Act but the same was rejected. In this regard he referred to the decision of the tribunal in Radhey Shyam Ratanlal v. Collector of Customs where the cloves which were considered not fit for human consumption were allowed clearance for industrial consumption. Reference was also invited to the decision of the tribunal in the case of R. Piyarelall Import and Export Ltd. wherein the goods were found unfit for human consumption but the matter was remanded to Collector to consider release of goods on payment of redemption fine and subject to a bond for reprocessing of the goods if such processing could remove the contaminants. The Advocate also invited attention to the decision of Bombay High Court in the WP No. 2325/2006 filed by Rich Kwality Products Pvt. Ltd. and Anr. where under similar circumstances the sample failed the baudouin test but were otherwise found not to be adulterated or fit for human consumption. The clearance was allowed by the Bombay High Court.
3. In view of the above it was submitted that he may be allowed to reprocess the goods and to clear the same after it meets the specifications laid down under the PFA Act.
4. The learned DR, however, submits that the decision of the Bombay High Court is distinguishable as in that case the goods were not found to be adulterated and were declared to be fit for human consumption. However, in the present case the goods have been declared to be adulterated as well as mis-branded and, therefore, clearance cannot be allowed.
5. We have considered the submissions. We find from the test report of the CFL, Calcutta that the only ground on which the sample has been declared to be adulterated was that the sample did not meet the requirements of baudouin test. No other reasons have been given. 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. We further find that the Director, CFL has filed an affidavit in which he has 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, Calcutta and if on receiving such certificates he find that the goods are not adulterated and are fit for human consumption then he should cot sider allowing clearance after completing the adjudication proceedings. Opinion should also be sought if the goods can be made fit for human consumption after reprocessing and to conform to the PFA specifications and if so the reprocessing should be permitted. There is a charge of misbranding also which could not be explained and this aspect may also be looked into if the misbranding can be rectified. Only after it is established that both the defects i.e. adulteration (non-compliance with the specifications provided under PFA Act) and misbranding is removed then the clearance should be allowed after adjudication. We are told that the consignments are imported in the month of December 2005 and has a maximum shelf life of one year. In view of this the certificates from the Port Health Officer and the CFL should be obtained within one month of the receipt of this order and action taken accordingly.
6. Appeal is allowed by way of remand.