COMMISSIONER OF CUSTOMS Vs. AVENUE IMPEX

JUDGEMENT

(1.) THIS appeal is preferred against the Final Order in No. 1166/2011, dated 27 -10 -2011 ( : 2013 (294) E.L.T. 338 (Tri. -Chen.)) by Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. Briefly stated, the case of the 1st respondent is that the 1st respondent is a Firm engaged in the business of import and trading of cereals, especially white Oats from countries like Australia, Argentina, etc., and it imported a consignment of Oats (Rolled and Flaked) in 2080 Bags of 20 kgs. each and the goods were supplied by the foreign supplier M/s. 3 Arroyos, Buenos Aires, Argentine and the consignment was referred to the PHO, FSSAI, Chennai for clearance under the Prevention of Food Adulteration Act (for short 'PFA Act') and they, by their letter dated 30 -6 -2011, informed that the goods do not contain the name and address of the manufacturer and also the date of manufacture and, hence, the remaining shelf life cannot be ascertained as per the DGFT Notification dated 30 -7 -2011 and, therefore, the sample could not be drawn for analysis. The importer replied that the items were imported in bulk packs and they have to be fumigated for five days to kill insects and after further processing, they have to be packed into retail packs and exemption is available to them as per clauses (f) and (g) of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (for short 'PFA Rules'). Adjudication proceedings were initiated and the Additional Commissioner of Customs (Group -I) by order dated 2 -8 -2011, by confiscating the goods under Section 111(d) of the Customs Act, 1962 and allowed redemption for the purpose of re -export on payment of fine of Rs. 2 lakhs and penalty of Rs. 1 lakh. Challenging the said order, the 1st respondent herein preferred appeal and the Commissioner of Customs (Appeals), by order dated 26 -8 -2011, upheld the order of confiscation, but reduced the fine and penalty to Rs. 1,00,000/ - and Rs. 50,000/ - respectively and declared that the goods are not allowed for home clearance. Aggrieved by the same, the 1st respondent herein filed further appeal before the Customs, Excise and Service Tax Appellate - Tribunal, South Zonal Bench, Chennai and the Tribunal, by impugned order dated 27 -10 -2011, held that the packs containing 20 kgs. of Oats, bear the necessary details regarding the supplier's name, brand, address and the date of expiry as April, 2012 and the first respondent herein has also undertaken to provide any other details required to comply with the local laws at the time of re -packing and re -labeling the impugned goods in the Customs bonded area before customs clearance and they are also undertaking to ensure that the Port Health Authorities would be called upon to test the consignment before the customs clearance and, hence, the prayer made by them is reasonable and, accordingly, set aside the impugned order and directed the customs authorities to allow the 1st respondent herein to re -pack and re -label the impugned goods in a customs bonded premises and, thereafter, it would be open to the Port Health Authorities to test and certify the impugned goods and a fresh order may be passed by the original authority after certification is done by the Port Health Authorities and allowed the appeal in the above terms. Aggrieved by the said impugned order, the Commissioner of Customs has preferred this statutory appeal under Section 130 of the Customs Act.

(2.) MR . S. Xavier Felix, learned Senior Central Government Standing Counsel appearing for the appellant submits that Rule 32 of the PFA Act stipulates that the date of manufacture should be indicated on the package in order to ascertain the remaining shelf life of the product and in the present case, the packages of goods imported by the petitioner did not have the date of manufacture on them and further, the name and complete address of the manufacturer of the product are also not mentioned and the goods are also not covered under the exemption provided under Rule 32 and since the article of food is not labeled in accordance with the requirements of the PFA Act, it shall be deemed to be mis -branded and Section 5(ii) of the PFA Act prohibits import of such mis -branded food article into India and the Tribunal has passed the impugned order without considering the said provisions and allowed the importer to re -label the pack with the date of manufacture and, hence, the impugned order is liable to be set aside.

(3.) THIS Court, at the time of admission of this appeal, framed the following substantial questions of law: -