Page 160 - ELT_15th May 2020_VOL 372_Part 4th

550 EXCISE LAW TIMES [ Vol. 372

42. 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 guide-
lines/Rules does not authorise 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 there-
under. Even the Food Safety and Standards Act, 2006 does not empower the of-
ficers to take any appropriate action under the said provisions. Secondly, the said
Circular does not deal with the product in question. It be only observed that
there is no live link or tell a tale sign of the product being of a foreign origin or
having passed through a territory other than India, much less Nepal.
43. Who were those “customs officers” who informed the seized nuts
not to be of Indian origin, as recorded in the Panchnama, is embedded only in
the mind of the officer and despite a period of 10 months, has not surfaced on the
record. In any event, were they experts in the field, judging the Areca Nuts not to
be of Indian origin by visual inspection? Fact, not known to anyone. Mere suspi-
cion cannot be a reason sufficient enough to derive such a conclusion forming a
belief ‘for reason to believe’.
44. Even otherwise, if the goods are “unsafe food” it is for the authori-
ties under the relevant Act to proceed and take appropriate action, for mere re-
port in that regard would not confer any jurisdiction upon the Customs Officer
under the Customs Act.
45. 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 Circular pre-supposes the goods to be “imported goods”, with the parties
being ad idem on such fact, which is not the case in hand.
46. Circular dated 20th November, 2018 prescribes the standards of ar-
eca nuts under sub-regulation 2.3.55 of Food Safety and Standards (Food Prod-
ucts Standards and Food Additives) Regulations, 2011 and also in Chapter 2 of
Food Safety & Standards (Contaminants, Toxins and Residues) Regulations,
2011. Significantly, 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 circular 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 Cus-
toms Act, which is not the case in hand.
47. 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 ad-
ditional laboratories for conducting tests of Areca/betel nut and other products.
48. It is seen that in MJC No. 2185 of 2013 titled as the Union of India &
Ors. v. Salsar Transport Company & Anr., decided on 24-7-2013, the Learned Single
Judge of this Court took a view that the Food Safety and Standards (Packaging
and Labelling) Regulations, 2011 would be applicable only where the product is
sold in a package with inscription of the statutory warning that “chewing of Su-
pari is injurious to health” and such product complying with the Food Safety and
Standards (Contaminants, Toxins and Residues) Regulations, 2011 which view
EXCISE LAW TIMES  15th May 2020  160