Cus - Appellant taking a stand that 'cheese curd' is intermediate for manufacturing Mozzarella cheese & not 'food' and since there are no standards provided, question of failing quality test under FSS Act does not arise - Commissioner(A) order is not a speaking one - Matter remanded: CESTAT
By TIOL News Service
MUMBAI, JAN 26, 2016: THE appellant had exported 'cheese curd' to M/s Forsan Foods & Consumer Products Co. Ltd., Saudi Arabia . The said goods were rejected and returned by the buyer on the ground of quality deficiency.
On re-import, the said goods were subjected to FSSAI test and it was revealed that the goods did not conform to the parameters as specified for the product.
The Customs department, therefore, alleged that the goods are liable for confiscation u/s 111(d) and the appellant importers are liable to penal action u/s 112(a) of the Customs Act, 1962.
The appellant contested the notice on the ground that the goods exported and re-imported by them is 'cheese curd', which is an intermediary product for manufacturing mozzarella cheese;that the goods being intermediary in nature cannot be sold as such;that the said goods need to be intensively processed for conversion into mozzarella cheese and during the process the alleged deficiency found in the FSSAI test report would be removed. They also relied on the opinion of Dr. A.A.Patel, Head, National Dairy Research Institute (Dairy Technology Division), Karnal .
The Additional Commissioner of Customs confiscated the re-imported goods and offered them for release u/s 125 of the Acton payment of Rs.7 lakhs as redemption fine. He also imposed a penalty of Rs.3.6 lakhs on the importer u/s 112(a) of the Act and also permitted clearance of the goods for reprocessing at the factory premises on execution of Bank Guarantee of 20% of value and Bond for the assessable value, subject to the condition that the reprocessed goods shall be allowed to be cleared for home consumption only if they conform to all the prescribed standards. He also ordered movement of goods from the Dock to the factory premises under a Transit Bond.
Challenge to this order before the Commissioner (Appeals) did not fetch the desired result and so the appellant is before the Tribunal.
It is argued that the impugned goods are not 'food' as provided under section 3(j) of FSS Act and, therefore, there are no standards provided for these goods under the FSS Act and rules made thereunder. The appellant further submitted that the above ground was not considered by the lower authorities. Moreover, since the impugned goods did not fall within the definition of Food under section 3(j) of FSS Act, the question of failing the quality test under the said Act does not arise, the appellant added. It was also emphasized that "Coliform count" on which the impugned goods had failed, can be easily rectified and evidence in this regard was submitted in the shape of an Affidavit and opinion which too was not considered by the lower appellate authority.
The AR supported the order of the lower authority.
The Bench, in a terse order, observed -
"5. ... I find that the impugned order does not deal any of these issues, which were raised before the Commissioner (Appeals) and to that extent, the order is not a speaking order. Since many of the issues raised and which have not been answered are based on facts as well, I cannot independently deal with it in the Tribunal. Since the order is not a speaking order, it is set aside and the matter is remanded to the Commissioner (Appeals) for giving findings on all the grounds which have been raised before him."
In passing: The early bird may get the worm, but the second mouse gets the cheese - Anon.
(See 2016-TIOL-256-CESTAT-MUM)
