Kejriwal Enterprises v. Uoi& Ors

VALMIKI J.MEHTA, J A.K. SIKRI, J ^ September25, 2009 W.P.(C)7734/2009 Page10 /I,

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P(C^ No. 7734/2009 Reservedon : 23*^^ September,2009 Pronouncedon: 25^*^ September,2009 KEJRIWAL ENTERPRISES & ORS ...Petitioners Through; Mr. JayantBhushan, Sr. Advocatewith Mr. Abhishek Saket, Advocate VERSUS UNION OF INDIA & ors. ....Respondents Through: Dr. Ashwani Bhardwaj, Advocate for respondents No. 1 to 3. CORAM: HON'l^^E MR. JUSTICE A. K. SIKRI HON'BLE MR. JUSTICE VALMIKI J.MEHTA 1. Wlietherthe Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? % VALMIKI J.MEHTA, J The presentwrit petitionhas been filed by the petitionerunder Article 226 of the Constitution of India seeking inter alia, the relief against the respontat No.2/Commissionerof Customs to release the goods in question, namely. Honey without any PFA.(Prevention of Food Aduheration) check and health check. Further relief is prayed for quashing of CSL Test conducted by W.P.CC)7734/2009 Page1 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. the respondentNo.3/Directorof CentralFood Laboratoryand underwhich test the consignmentof Honey has been found to be adulterated/contaminatedwith an antibiotic, Chloramphenicol. The facts of the case are that the petitioner No.l is engaged in the businessof exportof Agri Food Commoditiesand the petitionerNo.2 is in the business of processing Honey and exporting the same out of India. The petitionersstatethat in the courseof its exportbusiness,the petitionerNo.l got an export order from a US Companynamely, LAMEX. The petitionerNo.l, through petitioner no.2 supplied Honey to the said US buyer. As per the contentions of the petitioner, after the shipment was sent, the buyer LAMEX retumecfapartofthe consignmenton the groundthatthe same was foundto be containingmoisture beyond their requirementand acceptable limit. On return of the said shipment, the customs official sent a sample of Honey to the respondentNo.3 and which sample when tested was found to be adulterated containingthe antibiotic Cliloramphenicol. The petitioners further contend that in terms of the Custom Circular No. 1/02 dated 8.1.2002, it has been clarified by the respondent No.l that the Prevention of Food Adulteration Act, 1954. (hereafterPFA Act) is not applicable for food items meant for export on re export. The petitioners further contend that since the Commissioner of Custorfc^espondent No.2 has identified the re-imported Honey as that, which was exportedi.e meant for export on re-export, the goods should be released as V W.P.CC)7734/2009 Page 2 A r it is recordedin the customs report that the foreign buyer had sent the goods back due to quality issue of moisture content. 3. At this stage, it would be relevantto refer to the circularNo.1/02 dated 8.1.2002. "Circular No.l/2002-Cus. 8*'' January,2002. F.No.450/21/98-Cus. IV (Vol. II) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs ^ Subject:ApplicationofPFAAct,1954for clearanceofconsignmentsof food articles-reg.- I am directed to refer to Board's Circular No.58/2001-Cus., dated 25.10.2001 on the above mentioned subject. In the said Circular, it hasbeenprovidedthat allthe consignmentsof importedfood itemsareto be referred to Port Health Officers for testing under the PFA Act, 1954. A reference has been received from the trade stating that the food items imported by EOUs for subsequent export after processing should be exemptedfrom the mandatorytestingunderthe said Act. 2. The matter has been examined in consultation with the Ministry of Health & Family Welfare. It is observed that there is no provisionin the PFA Act to exemptfood itemsimportedbyEOUs or unitsin EPZ/SEZfrom testingunder the said Act It has, however, been clarified by theMinistryofHealth &Family Welfarethat the PFAAct is not applicable for food meantfor e