Decided on August 12,1991



T.P. Nambiar, Member (J) - (1.) BEING aggrieved by the orders passed by the learned Collector of Customs, Calcutta in Order No. S 33-Gr-1(P)-11/90-A, dated 15-11-1990 the appellants have filed this appeal with a prayer that the order may be set aside.
(2.) The facts leading to this case are that the appellants M/s. R. Piyarelall Import & Export Ltd. imported six consignments of Toor Whole (Arhar Pulses) from Burma and six home consumption bills of entry were filed for clearance of the same. The goods were assessed to duty and released against Port Health Organisation and Plant Quarantine bonds pending submission of certificates from the Port Health Organisation and Plant Quarantine authorities. The appellants undertook that the goods would not be disposed of in whole or in part unless the Collector of Customs or any other officer on his behalf allows them to do so in writing. Samples were drawn by Port Health Officer and Plant Quarantine and Fumigation Officer in presence of the appellants' representative at the time of examination of the goods. Plant Quarantine and Fumigation Department vide Certificates No. F-5-28/90 J-298 to 303, dated 8-5-1990 recommended for release of the goods. The Port Health Officer vide his Certificate No. 906/P.H.O.G./ 106/F-2(a) (90), dated 4-5-1990 has stated that the sample did not conform to the standard specification as laid down under the prevention of Food Adulteration Rules, 1955 in respect of insect damaged we evilled grains and was unfit for human consumption as it contains dead insects. The appellants vide their letter dated 10-5-1990 requested for drawal of fresh samples for retesting. Collector of Customs allowed them to draw fresh samples, two each from the consignments in barges lying in godown of the party and from water stained bags. Accordingly, samples were again drawn by Port Health Officer in presence of Customs Authorities and party's representative and 3 (three) sets were sent to the Director, Central Food Laboratory, Calcutta and the three sets were sent to the Calcutta Municipal Corporation for retesting. The Central Food Laboratory in their reports dated 18-7-1990 certified that all the three samples of Toor Whole are adulterated. Calcutta Municipal Corporation Authorities certified that sample Nos. 1 and 3 were adulterated and that sample No. 2 conformed to the prescribed standard according to P.F.A. Rules. According to the department, in view of the initial report of Port Health Organisation and subsequent analysis reports of Central Food Laboratory, the imported pulses were adulterated and not fit for human consumption. The importation of the same was prohibited under Section 5 of the Prevention of Food Adulteration Act read with Section 11 of the Customs Act and were liable for confiscation under Section 111(d) of the Customs Act. A Show Cause notice was issued to the appellants on 17-9-1990 and the appellants replied to the notice. Thereafter, adjudication proceedings were conducted. The learned Collector came to the conclusion that the imported Toor Wholes were adulterated and confiscated the same. He, however, held that since the importation was done on the bonafide belief that the same complied with the local requirements, no penalty was imposed under Section 112 of the Customs Act, 1962. When the case came up for hearing before us, Shri K. Srinivasan, Shri P.K. Ghosh and Shri B.N. Chattopadhyay, learned Consultants appeared for the appellants and Shri M.N. Biswas, learned SDR and Shri B.B. Sarkar, learned JDR appeared for the respondents.
(3.) IT was contended on behalf of the appellants that the learned Collector had erred in holding that the three samples drawn and sent to the Central Food Laboratory were representative of the entire consignment. IT was also contended that the samples were drawn only from some bags and the confiscation of all the six consignments on the basis of three reports from the Central Food Laboratory on the analysis of three unrepresentative samples is without jurisdiction. IT was also contended that the Central Food Laboratory had to work under the framework of the Prevention of Food Adulteration Act and if they had not done their task accordingly, the same has to be ignored. IT was further contended that the learned Collector erred in not accepting the effort made which would effectively removed the causes of contamination and hence the objection raised by the Central Food Laboratory for the clearance of the goods can be cured by reprocessing the same. In this connection, Shri Ghosh, learned Counsel relied on Section 11(5) of the Prevention of Food Adulteration Act (to be referred to as TFA Act', for short), 1954, which empowers a Magistrate to order that the articles of food can be returned to the owner on his executing a bond with or without sureties if they process the same and make it conforming to the prescribed standard of human consumption after reprocessing under the supervision of such Officer as may be specified in the orders. IT was his submission that this power could be exercised by the Collector in terms of Section 6 of the PFA Act. IT was also urged that the CIF Value of the imported pulses is 72.06 lakhs and that the only ground for holding the same as adulterated is the marginal excess of D.D.T. and lindane which is due to the use of insecticides/pesticides. IT was also submitted that the absolute confiscation of 24,300 bags is a harsh punishment and a national loss when the CIF value has already been remitted to the sellers.;

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