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Judgment
M. Jaichandren, J.—Heard the learned counsels appearing for both sides. It has been stated that the petitioner Company is a regular
exporter of various kinds of shrimps. The petitioner Company is registered under the Marine Products Export Development Authority Rules,
1972, as an exporter of the sea foods. The petitioner Company is a government recognised export house, with one star status. It is accredited with
ISO-22000 for food safety, and it has also obtained the other necessary approvals from the various authorities concerned. It has also obtained
international accreditation, for food safety.
It has been further stated that the petitioner had exported 3,534/- cartons of shrimps to its customer at Canada, vide Shipping Bills, dated
8.7.2010 and 31.8.2010, covered by invoices, dated 5.7.2010 and 27.8.2010, respectively. Along with the shipping bills, the petitioner had also
filed the code list containing the date of production, production code and source code. The shrimps exported by the petitioner Company had shelf
life, upto 2 years, from the month of May, 2010. A certificate, dated 8.8.2011, has been issued in this regard, by the Central Institute of Fisheries
Technology, a body authorised to issue such certificates. Though the shelf life of the shrimp, sought to be exported by the petitioner Company, is
24 months, it had been typed in the carton boxes, as ''Best Before Use'' as April, 2011. While so, the foreign customer had returned 1289 cartons
on the ground of defective packing and had asked the petitioner company to re-pack and re-export the same. As such, the petitioner Company
had filed a Bill of Entry, dated 7.7.2011, for the returned cartons of shrimps, claiming the benefit of Notification 94/96 Cus. At the time of the filing
of the Bill of Entry, it had been categorically stated that the goods in question were imported for the purpose of re-export. The relevant documents
had also been filed and it had also undertaken to furnish a bond. The Port Health Officer had been called upon to draw the samples. However, the
said authority had refused to take the samples on the ground that it had been shown on the carton boxes, as ''Best Before Use'', as 30.4.2011.
Even though the petitioner Company had submitted that the date shown on the carton boxes cannot be a conclusive proof of the shelf life of the
goods, the authorities concerned had refused to accept the said contentions.
It has been further stated that the petitioner Company had also furnished a certificate, from the competent authority, to prove that the shelf life of
the shrimps in question is upto 24 months. The petitioner company had also relied upon the circular of the Directorate General of Foreign Trade,
dated 4.8.2011, clarifying the concept of ''shelf life'', stating that it would not be applicable to the food articles imported for re-export. However, in
spite of such contentions raised on behalf of the petitioner Company, the respondent had passed an Order-in-Original No. 18294 of 2012, dated
14.2.2012, confiscating the shrimps imported by the petitioner, for the purpose of re-export. By the said order, the petitioner had also been
imposed with the penalty.
It had also been stated that the petitioner company had filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal,
Chennai, (hereinafter referred to as the CESTAT). The CESTAT, by its final order No. 1291 of 2011, dated 8.12.2011, remanded the matter
back to the respondent, with a specific direction to apply the circular of the Directorate General of Foreign Trade, dated 4.8.2011 and to pass a
fresh order. Pursuant to the said order of the CESTAT, dated 8.12.2011, the petitioner Company had duly filed fresh submissions and it had also
attended the personal hearing given to the petitioner Company. However, the respondent, without complying with the specific directions issued by
the CESTAT had passed an Order-in-Original No. 18294 of 2012, dated 14.2.2012, similar to its earlier order, dated 2.9.2011. In such
circumstances, the petitioner had preferred the present writ petition, before this Court, under Article 226 of the Constitution of India.
It has been stated that the petitioner Company had filed the present writ petition, before this Court, as the order passed by the respondent, on
14.2.2012, is ex facie, and erroneous and contrary to the directions issued by the CESTAT, and the circular of the Directorate General of Foreign
Trade, dated 4.8.2011. Further, the CESTAT, is not sitting due to the vacancy of the Judicial Member. As such, irreparable loss is being caused
to the petitioner Company and therefore, it had been constrained to approach this Court, by way of a writ petition, invoking its extraordinary
jurisdiction, under Article 226 of the Constitution of India.
In the counter affidavit filed on behalf of the respondent, it has been stated that the petitioner Company had filed a Bill of Entry No. 4005797,
dated 7.7.2011, for the clearance of frozen shrimps stating that the goods had been re-imported by the overseas buyer LOB Laws Inc., Canada.
Such goods had been sent for examination to the Food Safety and Standard Authority of India, Chennai. After inspection and verification, it had
been informed that the Bill of Entry in question contains frozen shrimps and that the Best Before Date, as pasted on the carton, is 30.4.2011.
Hence, the validity of the shelf life had expired and therefore, the necessary samples could not be drawn, for analysis.
It had also been stated that, following the principles of natural justice, a personal hearing had also been granted to the petitioner Company, on
24.8.2011. After considering the submissions made by the petitioner Company, an Order-in-Original No. 17250 of 2011, dated 2.9.2011, had
been passed, ordering the destruction of the goods, as they had expired.
Aggrieved by the said order, the petitioner Company had preferred an appeal before the CESTAT. It had passed a final order No. 1291 of
2011, dated 8.12.2011, remanding the matter back for de novo adjudication, with a direction to the adjudicating authority to reconsider the case,
after giving a personal hearing and on re-verification of the facts. The adjudicating authority had passed the Order-in-Original No. 18294 of 2012,
dated 14.2.2012. The said order is a reasoned order issued after considering the submissions made on behalf of the petitioner Company. It had
been directed that the goods in question must be destroyed and that the claim of the petitioner may be rejected. The petitioner company had also
been directed to pay a penalty of Rs. . 1,00,000/-.
It had been further stated that the claim of the petitioner Company that the shrimps in question have a shelf life, upto 2 years, commencing from
the month of May, 2010, is incorrect, as the cartons containing the shrimps do not show the date and the month and therefore, the shelf life of the
goods in question cannot be assessed, correctly.
It had been further stated that it is not in dispute that the best before date mentioned on the label, on the cartons, is April, 2011. While so, it is
not open to the petitioner to claim that the shelf life of the goods in question is 24 months. Even otherwise, it is open to the petitioner to avail the
alternative remedy by filing an appeal before the CESTAT. However, without exhausting the alternative remedy available, the petitioner Company
had approached this Court by way of filing the present writ petition, under Article 226 of the Constitution of India.
It had been further stated that, as the shelf life of the goods in question had expired, it is unfit for human consumption and therefore, an order
had been issued to destroy the same. As such, the writ petition is liable to be dismissed, in limine.
In view of the averments made on behalf of the petitioner, as well as the respondent, and on a perusal of the records available, this Court is of
the considered view that the relief sought for by the petitioner company, in the present writ petition, cannot be granted, at this stage.
It is not in dispute that an efficacious alternative remedy is available to the petitioner, by way of filing an appeal before the CESTAT, against
the Order-in-Original No. 18294 of 2012, dated 14.2.2012, passed by the respondent.
The contentions raised on behalf of the petitioner Company that the respondent had not followed the directions issued by the CESTAT, in its
order, dated 8.12.2011, directing the respondent to apply the circular of the Directorate General of Foreign Trade, dated 4.8.2011, to the case of
the petitioner and to pass an appropriate orders, is not sustainable.
From the records available, it is clear that the respondent had considered the directions issued by the CESTAT and had passed an order,
dated 14.2.2012, in Order-in-Original No. 18294 of 2012. However, if the petitioner company is aggrieved by the said order, it is open to it to
file an appeal before the CESTAT, in the manner known to law.
Further, it is clear that the principles of natural justice had been followed, by the respondent, while passing the impugned order, dated
14.2.2012. Even though various grounds had been raised on behalf of the petitioner company, this Court is not inclined to go into the merits of the
matter, as it is open to the petitioner Company to avail the alternative remedy of appeal available to it.
Further, the petitioner Company has not been in a position to show that the impugned order, dated 14.2.2012, had been issued by the
respondent, without following the principles of natural justice. It is not the case of the petitioner Company that the respondent does not have the
authority or jurisdiction to pass the Order-in-Original No. 18294 of 2012, dated 14.2.2012. The reason that the CESTAT is not sitting due to
vacancy in its Chennai Bench cannot be a good reason for this Court to interfere with the order of the respondent, dated 14.2.2012, as prayed for
by the petitioner company, in the present writ petition. Hence, the writ petition stands dismissed. No costs. However, it is made clear that it would
be open to the petitioner Company to avail the alternative remedy available to it before the appropriate forum, in the manner known to law. No
costs. Connected MP. No. 1 of 2012 is closed.