AL MARWA TRADERS Vs. ASST COMMISSIONER OF IMPORTS

JUDGEMENT

(1.) We are disposing of these two Writ Appeals by a common judgment since facts in the same are identical and common issues arise for consideration.

(2.) Appellants in these two Writ Appeals are importers of ungarbled betel nuts. They are aggrieved by the action of the customs authorities in detaining consignments of betel nuts imported by them for the purpose of manufacturing Supari. According to them, the betel nuts they have imported are ungarbled betel nuts which are freely importable under the Exim Policy, subject to clearance under the provisions of the Plant, Fruits and Seeds (Regulation of Import into India) Order 1989 and the Plant Quarantine (Regulation of Import into India) Order, 2003, issued under the provisions of the Destructive Insects and Pests Act, 1914. They are now aggrieved by the action of the customs authorities in subjecting samples of the ungarbled betel nuts imported by them to tests under the Prevention of Food Adulteration Act, 1954 (for short 'the Act') as per the specifications prescribed in Item A.28.04 of Appendix B containing definitions and standards of quality prescribed under Rule 5 of the Prevention of Food Adulteration Rules, 1955. According to them, ungarbled betel nuts imported by them being a primary food, would not come within the meaning assigned to dry fruits and nuts under Item A.28.04 for which alone standards have been prescribed under the said Act and therefore such goods cannot be subjected to tests for such standards. They would submit that if ungarbled betel nuts are subjected to tests for the standards prescribed under Item A.28.04, nobody can import ungarbled betel nuts into India, since, practically, the ungarbled betel nuts would not satisfy the standards prescribed under Item A.28.04. They would further submit that formerly ungarbled betel nuts imported were not subjected to tests for such standards, and only because of Ext. P1 communication whereby the Director General of Health Services is stated to have opined that Supari (betel nut split or whole) is an item of food in view of the decision of Supreme Court Pyarali K. Tejani v. Mahadeo Ramachandra Dange and Ors. , to which the provision of the Act and the provision relating to clearance of food items would be applicable while allowing clearance of the same from customs locations, that the customs authorities are now insisting on conformity to such standards. Since the betel nuts imported by the appellants are being subjected to the tests for the standard's prescribed as per Item A 28.04 mentioned above, they have filed Writ Petitions from which these Writ Appeals arise challenging the said notification. However, the learned Single Judge relegated them to the adjudicating authority under the Customs Act without going into the merits of their contentions. The appellants are challenging the said judgment in these Writ Appeals.

(3.) The contention of the appellants is that since ungarbled betel nuts being a primary food, the customs authorities cannot take samples of the same as an item of food for analysis in view of the proviso to Sub-section (2) of Section 10 of the Act. They would further submit that since betel nuts are put to rigorous tests under the Plant, Fruits and Seeds (Regulation of Import into India) Order 1989 and the Plant Quarantine (Regulation of Import into India) Order, 2003, there cannot be any chance of the betel nuts imported by the appellants being sub standard foods and therefore once it is held that the specifications under Clause A.28.04 is not applicable to the betel nuts imported, no other tests or analysis is necessary for clearance of the betel nuts imported by them. It is their contention that no standards are prescribed for ungarbled betel nuts under the Act and therefore the same cannot be subjected to tests for any of the standards prescribed under Appendix B to the Act.