M/S TASTY NUT INDUSTRIES v. COMMISSIONER OF CUSTOMS, KOCHI & THE AUTHORIZED OFFICER (COCHIN PORT), FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945** **WP(C) NO. 14690 OF 2023** ## **PETITIONER/S:** M/S TASTY NUT INDUSTRIES, KP XI/294, K.P. ROAD, KILIKOLLOOR, KOLLAM - 691004, REPRESENTED BY MANAGING PARTNER NAUFAL SALAM BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON GAUTHAM KRISHNA E.J. AVINASH KURUNGOT SHALLET K. SAM ## **RESPONDENT/S:** 1 COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN - 682009 2 THE AUTHORISED OFFICER (COCHIN PORT), FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, SOUTHERN REGION, MINISTRY OF HEALTH AND FAMILY WELFARE, FIRST FLOOR MARINE BUILDING, NORTH END P.O., WILLINGDON ISLAND, COCHIN - 682003 BY ADVS. I.SHEELA DEVI SMT.CHITHRA P.GEORGE, SC, FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14690 OF 2023 2 ## **JUDGMENT** The writ petition is filed challenging Ext.P16 order passed by the 1[st] respondent under Section 128 A of the Customs Act, 1962. 2. The petitioner's case is that they are a leading manufacturer and exporter of cashew based products. They had exported 400 cartons of organic cashew kernels to an overseas agency. But the consignment was rejected and returned to the Cochin Port, with an intention to reexport the goods after curing the defects. However, during the course of inspection, 200 cartons were found unfit for human consumption without factoring that the goods were due to be re-processed and re-exported. The goods were confiscated and destroyed and a penalty of Rs.50,000/- was imposed on the petitioner by Ext.P9 order. The petitioner preferred an appeal against Ext.P9 order before the Appellate Authority, but the same was also dismissed by the impugned Ext.P16 order. Ext.P16 is WP(C) NO. 14690 OF 2023 3 ex-facie erroneous and wrong. Hence, the writ petition. 3. Heard; Sri.Aswin Gopakumar, the learned Counsel appearing for the petitioner, Smt.Sheeladevi, the learned Counsel appearing for the 1[st] respondent and Smt.Chithra P. George, the learned Counsel appearing for the 2[nd] respondent. 4. Sri. Aswin Gopakumar, placed heavy reliance on the decisions of the Honourable Supreme Court in **Magadh Sugar & Energy Ltd. vs. State of Bihar and Ors.** [(2021) 6 SCR 1094] **, Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors.** [AIR 2023 SC 781], **Radha Krishnan Industries vs. State of Himachal Pradesh and Ors.** [AIR 2021 SC 2114] and a decision of this Court in **Sankar Shashtyabdapoorthi Memorial Hospital vs. Union of India [2017 (345) E.L.T. 334 (Ker.)]** to drive home the contention that, notwithstanding Ext.P16 order being appealable, the same does not debar the petitioner WP(C) NO. 14690 OF 2023 4 from invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, particularly because Exts.P9 and P16 are rendered without considering the rudimentary provisions of law. According to him, the writ petition squarely falls within the pigeon holes of the exceptions and principles laid down by the Honourable Supreme Court in paragraph 27 of **Radha Krishnan Industries** (supra). Hence, the writ petition is maintainable. 5. Smt.Sheeladevi, on the other contrary, argued that the petitioner had earlier approached this Court by filing WP(C) No.30127/2022, which was dismissed as withdrawn. Thereafter, the petitioner filed a review petition, which was allowed by this Court by Ext.P15 order, permitting the petitioner to exercise its statutory remedy. After Ext.P15 order, the petitioner preferred the appeal before the 1[st] respondent. Now, the petitioner cannot fall back and invoke the plenary powers of this WP(C) NO. 14690 OF 2023 5 Court under Article 226 of the Constitution of India. Furthermore, Ext.P16 order clearly provides that the petitioner has a further right of appeal under Section 129 AI of the Customs Act, 1962. Hence, this Court may not entertain the writ petition. 6. In **Radha Krishnan Industries** (supra), the Honourable Supreme Court has in clause (v) of paragraph 27 in unequivocal terms declared that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. 7. In the instant case, this Court specifically permitted the petitioner to invoke its statutory remedy as provided under the Act, which it availed and the petitioner preferred the appeal, and suffered Ext.P16 order. WP(C) NO. 14690 OF 2023 6 8. The statute provides a further appeal before the Customs, Excise and Service Tax Appellate Tribunal under Section 129 AI of the Act. 9. It is too late in the day for the petitioner to now aspire and turn around and challenge the legality of Exts.P9 and 16 orders in a writ petition. In the above conspectus, I am not inclined to entertain this writ petition. Resultantly, without prejudice to the right of the petitioner to work out his statutory remedies, in accordance with law, the writ petition is dismissed. Sd/- rkc/24.05.23 **C.S.DIAS JUDGE** WP(C) NO. 14690 OF 2023 7 ## **APPENDIX OF WP(C) 14690/2023** PETITIONER EXHIBITS |Exhibit P1|TRUE<br>COPY<br>OF<br>THE<br>LICENSE<br>NO.| |---|---| ||10016041000837 ISSUED BY FSSAI| |Exhibit P2|TRUE COPY OF THE CERTIFICATE OF| ||RECOGNITION ISSUED BY THE DGFT IN FAVOUR| ||OF THE PETITIONER| |Exhibit P3|TRUE COPY OF THE BILL OF ENTRY NO. 8524578| ||FILED BY PETITIONER ON ARRIVAL OF THE| ||GOODS IN COCHIN PORT DATED 03.05.2022| |Exhibit P4|TRUE COPY OF THE LETTER SENT BY THE| ||PETITIONER TO THE ASSESSING OFFICER,| ||FACELESS<br>ASSESSMENT<br>GROUP-1<br>DATED| ||22.06.2022| |Exhibit P5|TRUE COPY OF THE CERTIFICATE NO.| ||RNCC202200000470 ISSUED BY THE AUTHORISED| ||OFFICER, FSSAI DATED 13.07.2022| |Exhibit P6|TRUE COPY OF THE REPLY TO QUERY RAISED BY| ||THE ASSESSING OFFICER, FACELESS ASSESSMENT| ||GROUP FOR THE DEPUTY COMMISSIONER OF| ||CUSTOMS (IMPORTS) DATED 18.07.2022| |Exhibit P7|TRUE COPY OF THE LETTER SENT BY THE| ||PETITIONER ADDRESSED TO THE ADDITIONAL| ||COMMISSIONER<br>OF<br>CUSTOMS<br>REQUESTING| ||AMENDMENT OF CUSTOMS NOTIFICATION IN BILL| ||OF ENTRY 8524578 DATED 30.07.2022| |Exhibit P8|TRUE COPY OF THE LETTER ADDRESSED BY THE| ||PETITIONER TO THE COMMISSIONER OF CUSTOMS| ||REPEATING REQUEST OF AMENDMENT OF CUSTOMS| ||NOTIFICATION IN BILL OF ENTRY 8524578| ||DATED 12.08.2022| |Exhibit P9|TRUE COPY OF THE ORDER-IN-ORIGINAL NO.| ||133/2022 PASSED BY THE ADDITIONAL| WP(C) NO. 14690 OF 2023 8 COMMISSIONER OF CUSTOMS DATED 07.09.2022 Exhibit P10 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE COMMISSIONER OF CUSTOMS REQUESTING THE RELEASE OF GOODS DATED 16.09.2022 Exhibit P11 TRUE COPY OF THE REPORT OF INTERFIELD LABORATORY TEST ANALYSIS REPORT DATED 14.06.2022 Exhibit P12 TRUE COPY OF THE REPORT OF MATS LABORATORY TEST ANALYSIS REPORT DATED 15.06.2022 Exhibit P13 TRUE COPY OF THE CSIR-CFTRI REFERRAL LABORATORY TEST ANALYSIS REPORT DATED 13.07.2022 Exhibit P14 TRUE COPY OF THE JUDGEMENT DATED 17.10.2017 IN W.P.(C) NO. 27723 OF 2017 Exhibit P15 TRUE COPY OF THE ORDER DATED 23.01.2023 IN REVISION PETITION NO. 102 OF 2023 Exhibit P16 TRUE COPY OF THE ORDER-IN-APPEAL NO. COC - CUSTM - 000 - APP -01/2023-24 DATED 05.04.2023 PASSED BY THE COMMISSIONER OF CUSTOMS (APPEALS) AGAINST THE APPEAL FILED BY THE PETITIONER AGAINST THE ORDER ORIGINAL NO. 133/2022 DATED 07.09.2022 Exhibit P17 TRUE COPY OF THE SALES CONTRACT NO.TN/0404#2023 DATED 04.04.2023