Page 192 - ELT_2nd_15th April 2020_Vol 372_Part

238 EXCISE LAW TIMES [ Vol. 372

so facto, applied and adopted in instant case, for unless act and conduct of pe-
titioner makes him to be part and parcel of trading community, based in area
or dealing with illegal activities of such like nature - No track record of past
history of instant petitioners - Relevancy of each of five notifica-
tions/circulars/memorandum placed on record by Revenue not examined and
reasons not assigned with regard thereto - No live link or tell a tale sign of
product being of foreign origin or having passed through territory other than
India, much less Nepal - If goods “unsafe food”, authorities under relevant
Act, ought to proceed and take appropriate action, for mere report in that re-
gard not to confer any jurisdiction upon Customs Officer under Customs Act -
Goods in question yet raw, unfinished product, meant to be transported to an-
other State for processing and packaging, whereafter, only, eventually same
sold in open market - No reason to differ with judgment in Salsar Transport
Company - Section 110 of Customs Act, 1962. - Circular No. 3 of 2011 purportedly
issued under the provisions of the Prevention of Food Adulteration Act, 1954, does not
even deal with the issue in question. Firstly, the Prevention of Food Adulteration Act or
its guidelines/Rules does not authorize the Customs Officer to issue any circular or take
appropriate action under the provisions of the said Act. The Customs Officers are also not
empowered or authorized under the said Act or the Rules framed thereunder. Even the
Food Safety and Standards Act, 2006 does not empower the officers to take any appropri-
ate action under the said provisions. Secondly, the said Circular does not deal with the
product in question. Coming to Circular No. 35 of 2017, we notice that it only deals with
the manner in which the goods are to be released. Significantly, application for such Cir-
cular pre-supposes the goods to be “imported goods”, with the parties being ad idem on
such fact, which is not the case in hand. Circular dated 20th November, 2018 prescribes
the standards of areca nuts under sub-regulation 2.3.55 of Food Safety and Standards
(Food Products Standards and Food Additives) Regulations, 2011 and also in Chapter 2
of Food Safety & Standards (Contaminants, Toxins & Residues) Regulations, 2011. Sig-
nificantly, the said Circular itself prescribes that areca nut is prone to formation of fungal
growth during various stages of its production, storage and transportation and as such
the authorized officers are advised to be vigilant and not clear any “imported Betel/Areca
Nut consignment” unless it is subjected to 100% sampling and testing. How is this cir-
cular even applicable or relevant for determination of the controversy in issue remains
unexplained-Any bodies guess. It operates and applies in a totally different fact situation
and only where goods are imported and passed through the channel provided under the
Customs Act, which is not the case in hand. Circular No. 30 of 2017 only lays down the
procedure for having the seized goods re-tested. And Memorandum dated 4th June, 2019
only talks of additional laboratories for conducting tests of Areca/betel nut and other
products. [paras 18, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50]
Seizure order - Reason to believe - Supplementing reasons for for-
mation of ‘reason to believe’ through affidavit of authority - HELD : When
statutory functionary makes order based on certain grounds, its validity must
be judged by reasons so mentioned and cannot be supplemented by fresh rea-
sons in shape of affidavit or otherwise, for bad order, with passage of time,
and supplementing reasons would become good, which is not how authorities
required to function, more so, in case of confiscatory legislation. [para 18]
Public orders made by authorities are meant to have public effect and
must be construed objectively with reference to language used in order itself.
[para 19]

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