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K.P. Manish Global Ingredients Pvt. Ltd. v/s Additional Commissioner of Customs (Group-I), Chennai

Company & Directors' Information:- B N GLOBAL PRIVATE LIMITED [Active] CIN = U15400PB2014PTC038543

Company & Directors' Information:- D B GROUP INDIA PRIVATE LIMITED [Active] CIN = U63000MH2006PTC158759

Company & Directors' Information:- K V GLOBAL PRIVATE LIMITED [Active] CIN = U24100DL2014PTC263567

Company & Directors' Information:- GLOBAL CORPORATION LIMITED [Active] CIN = L74999DL1992PLC048880

Company & Directors' Information:- T & I GLOBAL LTD. [Active] CIN = L29130WB1991PLC050797

Company & Directors' Information:- K G GLOBAL PRIVATE LIMITED [Active] CIN = U74999DL2000PTC104788

Company & Directors' Information:- C S A V GROUP INDIA PRIVATE LIMITED [Not available for efiling] CIN = U72900DL2004PTC124999

Company & Directors' Information:- A. V. GLOBAL CORPORATION PRIVATE LIMITED [Active] CIN = U63090DL2007PTC159315

Company & Directors' Information:- MANISH CORPORATION PRIVATE LIMITED [Active] CIN = U17125MP2006PTC019169

Company & Directors' Information:- A N GLOBAL LIMITED [Active] CIN = U92110MH1985PLC035269

Company & Directors' Information:- D S GLOBAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071516

Company & Directors' Information:- MANISH CO PVT LTD [Active] CIN = U51909WB1979PTC032027

Company & Directors' Information:- A B C GLOBAL PRIVATE LIMITED [Active] CIN = U51909PB2011PTC035103

Company & Directors' Information:- I A T GLOBAL COMPANY PRIVATE LIMITED [Active] CIN = U24116DL1997PTC084916

Company & Directors' Information:- J D GLOBAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC091270

Company & Directors' Information:- B N G GLOBAL INDIA LIMITED [Active] CIN = U52590DL2011PLC225377

Company & Directors' Information:- N K COMPANY (GLOBAL) PRIVATE LIMITED [Active] CIN = U52390WB2010PTC153624

Company & Directors' Information:- K B K GLOBAL PRIVATE LIMITED [Active] CIN = U24296DL2016PTC290487

Company & Directors' Information:- KP GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74900DL2011PTC220942

Company & Directors' Information:- M & D GLOBAL PRIVATE LIMITED [Active] CIN = U31101UP1974PTC003937

Company & Directors' Information:- V R GLOBAL PRIVATE LIMITED [Active] CIN = U45200WB2007PTC120797

Company & Directors' Information:- M M GLOBAL PRIVATE LIMITED [Strike Off] CIN = U29120WB1986PTC041280

Company & Directors' Information:- R V GLOBAL PRIVATE LIMITED [Active] CIN = U74990MH2009PTC195301

Company & Directors' Information:- M M C GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U11200MH2010PTC206910

Company & Directors' Information:- S R GLOBAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1997PTC084553

Company & Directors' Information:- H V GLOBAL PRIVATE LIMITED [Active] CIN = U18101DL2000PTC103960

Company & Directors' Information:- R P GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74990MH2009PTC193409

Company & Directors' Information:- M S GLOBAL PRIVATE LIMITED [Active] CIN = U70100MH2008PTC213273

Company & Directors' Information:- R S V GLOBAL LIMITED [Strike Off] CIN = U51909DL1994PLC059032

Company & Directors' Information:- N B GLOBAL (INDIA) PRIVATE LIMITED [Active] CIN = U15122UP2012PTC051614

Company & Directors' Information:- MANISH (INDIA) PVT LTD [Strike Off] CIN = U27209WB1984PTC037408

Company & Directors' Information:- G S S GROUP PRIVATE LIMITED [Strike Off] CIN = U01212KL1995PTC009575

Company & Directors' Information:- D C GROUP PVT LTD [Active] CIN = U51109WB1981PTC033553

Company & Directors' Information:- AT GROUP INDIA LIMITED [Active] CIN = U74999MH2013PLC247209

Company & Directors' Information:- R & L GROUP LIMITED [Strike Off] CIN = U01403HR2012PLC046635

Company & Directors' Information:- INDIA INGREDIENTS PRIVATE LIMITED [Active] CIN = U24200TN2013PTC091500

Company & Directors' Information:- A M GLOBAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC261061

Company & Directors' Information:- L S A GLOBAL INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098308

Company & Directors' Information:- R L GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U52300HP2014PTC000764

Company & Directors' Information:- G R GLOBAL PRIVATE LIMITED [Active] CIN = U70102KA2013PTC069586

Company & Directors' Information:- H. E. GLOBAL PRIVATE LIMITED [Active] CIN = U72901GJ2016PTC092866

    Writ Petition No. 19950 of 2017

    Decided On, 11 September 2017

    At, High Court of Judicature at Madras


    For the Petitioner: S. Murugappan, Advocate. For the Respondent: K. Ravi, Senior Panel Counsel.

Judgment Text

Heard Mr. S. Murugappan, learned counsel for the petitioner and Mr. K. Ravi, learned Senior Panel Counsel for the respondent.

2. The petitioner is aggrieved over the impugned order passed by the Additional Commissioner of Customs, being the order-in-original dated 8-6-2017. By the impugned order the respondent has held that the subject goods namely the "Sweet Whey Powder" covered under the two bills of entry are not conforming to the provisions of the Food Safety and Standards Act, 2006 Rules and Regulations made thereunder. Therefore, the respondent ordered confiscation of the said powder under Section 111(d) of the Customs Act, 1962 and imposed penalty of Rs. 2,00,000/- on the petitioner under Section 112 (a) of the Customs Act, 1962, with an option to redeem the goods for re-export on payment of redemption fine of Rs. 3,00,000/-.

3. Mr. S. Murugappan, learned counsel for the petitioner would vehemently contend that the lab reports of the Primary lab (Nawal Analytical Laboratories, Hosur) and Referral Food Laboratory, Kolkata reveal many contradictory opinions among the parameters tested with wide variations within the analysis reports and finally, resulted in declaring that the product is not in compliance with the standards.

4. Further, the learned counsel made elaborate endeavour to convince this Court, as to how the consignment samples could have been failed in the parameters with regard to flavour and taste, lactose, milk protein, arsenic and sodium etc. Thus, it is the contention that the officials who conducted the test should be made available for cross-examination. The contention raised by the petitioner is liable to be rejected on more than one ground.

5. Firstly, there is no allegation of mala fides as against the officer who performed the test and submitted the report. Admittedly, the officer does not issue a certificate in his individual capacity but as an officer in a Government lab, which could be either Primary lab or Referral lab. Therefore, the plea raised by the petitioner that the officer should be made available for cross-examination is not tenable.

6. Secondly, the concerned officer has not been impleaded as a party respondent in this writ petition or for that matter, the primary lab or the referral lab or the authorities under the Food Safety and Standards Act have not been arrayed as respondents. Therefore, both the pleas raised by the petitioner has to necessarily fail.

7. An identical case came up for consideration before this Court in the case of M/s. Parry Enterprises India Limited v. The Authorised Officer, Food Safety and Standards Authority of India and 3 others, in W.P. No. 34716 of 2016. Though in the said case the Director, Central Food Laboratory, Kolkata was impleaded as third respondent, the Court while examining the correctness of the report of the Central Food Laboratory, pointed out that this Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot examine the validity of the test report when there are no other allegations of mala fides being made against the officer who have performed the test. In this regard, the observations made by this Court in paragraph 6 of the order in W.P.No.34716 of 2016, dated 30-9-2016 is extracted hereunder :

6. This Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot examine the validity of test report when there are no other mala fides alleged against the officers who have done the testing. Thus, merely because the third respondent has reported the presence of "heavy metal-Aluminium" in the samples, that by itself cannot vitiate the report by stating that he ought not to have examined the metal content in the samples as the general parameters do not provide for the same. In fact, even as per the general parameters in Regulation 2.11.6 of Food Safety and Standards (Food Product Standards and Food Activities) Regulations, 2011 metal contaminants can be examined for contents of contaminated metals like Lead, Copper, Arsenic, Mercury, Methyl Mercury, Tin, Zinc, Cadmium. Therefore, merely because of non-mentioning of the Aluminium as one of the metal contaminant cannot be a reason to vitiate the impugned test report. Thus the petitioner has not made out any case for interference.

8. Admittedly, the report filed by the Central Food Laboratory is a technical report. Therefore, if the petitioner seeks to dispute the technical report, it is for him to establish on the fact that the report is contrary to the factual position. However, this exercise cannot be done in a writ petition.

9. Thus, for the above reasons this Court is not inclined to entertain the writ petition and the same is dismissed as not maintainable. However, the petitioner is at liberty to avail the appeal remedy provided under the Act. If such appeal is preferred, the appellate authority shal

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l exclude the period from 1-8-2017 till the receipt of certified copy of this order while computing the limitation. 10. It is made clear that the observations made in this order are only for the limited purpose of deciding as to whether the writ petition has to be entertained. These observations shall have no bearing on the appeal petition. Appeal, if any preferred by the petitioner, shall be decided by the Appellate authority uninfluenced by the observations made in this order. Accordingly, the writ petition is dismissed. No Costs.