THE HON’BLE SRI JUSTICE N.V.RAMANA WRIT PETITION No.20204 of 2009 Dated: 08.10.2009 Between: M/s.PEC Limited, Hansalaya, 15 – New Delhi, rep. by its Dy.Marketing Manager G.Y.Dupate. .. Petitioner. And Office of the Commissioner of Customs, ‘Customs House’, Port Area, Visakhapatnam. .. Respondent. ORDER: The deponent, claiming to be the Deputy Marketing Manager of the petitioner Company, engaged in the business of Trading Internationally and Domestically, asserts that in pursuance of the order placed with the petitioner Company by the Andhra Pradesh State Civil Supplies Corporation Ltd., for the supply of Red Gram/Lemon Toor Whole, he floated a Global Tender for the supply of the said Lemon Toor Whole, for which five companies including M/s. Swina International Pte. Ltd., Singapore, responded to it. It is the case of the petitioner that, after fulfilling all the formalities, he imported in all about 1897 metric tons of Lemon Toor Whole from the said M/s. Swina International Pte. Ltd., in 39 containers from Myanmar, and the same was received at Visakhapatnam Port. Thereafter, the respondent Office forwarded samples of the said Lemon Toor Whole, for analysis, to the public analyst, who sent a report stating that the said sample is adulterated, and the said information was orally communicated to the petitioner. Thereupon, the petitioner addressed a letter dated 09.09.2009 to the respondent, to allow it to draw samples of subject cargo for retesting, but the respondent, through letter dated 11.09.2009, declined the request of the petitioner, and, on the other hand, directed it to refer the Board’s Circular No.58/2001, dated 25.10.2001, and also Section 13(2) of the Prevention of Food Adulteration Act, 1954. It is the case of the petitioner that the subject cargo underwent necessary scrutiny and analysis, while loading it at the place of export, and it was found free from moulds, fungus, live insects, obnoxious smell etc. and also it was duly sealed at the time of exporting from Myanmar. The petitioner, therefore, approached this Court seeking a direction to the respondent to get the samples of Cargo i.e., Red Gram/Lemon Toor Whole analyzed by the Central Food Laboratory, by drawing the samples in the presence of its representative, and also to hold two sets of the samples in safe custody by putting appropriate seals. On 06.10.2009, the respondent filed a detailed counter affidavit, reiterating the stand taken by it in its letter dt.11.09.2009 addressed to the petitioner. It is also stated that the subject cargo was inspected and samples were drawn, without any delay, in the presence of the representatives of the Importer and Custom House Agents and were forwarded immediately to the Regional (P.H.) Lab on 01.09.2009. It is further stated that it is not possible to draw samples for retesting, as retest can be done only from the sample available with the public analyst as per the Prevention of Food Adulteration Act, 1954. It is also stated in the counter affidavit that since there is no provision in both the Customs Act, 1962, and the Prevention of Food Adulteration Act, 1954, the copy of the analysis report of Regional (P.H.) Lab was not forwarded to the petitioner, but however the same was provided to the party’s agent on 29.09.2009. Since the respondent has not produced any relevant material to substantiate its contention taken in the counter affidavit, this Court, having found it necessary to know whether any panchanama is conducted and what is the report that the respondent has obtained from the health authorities, so as to enable it to decide the issue involved in the present case, directed the Deputy Commissioner of Customs, Visakhapatnam, to appear in-person before this Court with relevant record. Today, when the matter came up before this Court for appearance, the said Deputy Commissioner of Customs, Visakhapatnam, appeared in-person, along with relevant material, and, on his behalf, the learned Standing Counsel has drawn the attention of this Court to the note (1) specified under Section 19 of Chapter-III of Volume-III of the Customs Manual, the abstract of which has been filed before this Court along with material papers and which reads as under:- “When a party is dissatisfied with the results of the original test for classification of any goods for tariff or import Trade Canon purposes, it is open to him to make a retest of the sample on payment of the prescribed retest fee. Request for such retest should normally be complied with. Such retests should however be made only on the remnants of the samples originally tested.” The learned Standing Counsel submits that, in the light of the aforesaid provision of the Customs Manual, the respondent is willing to consider the request of the petitioner by sending the sample, which is already with them, for retesting to the Central Food Laboratory. The learned counsel for the petitioner expressed no objection to this stand taken by the learned Standing Counsel for the respondent. In view of the agreed stand taken by both the counsel, this writ petition is disposed of with the following directions: “The respondent is directed to send the sample available with it for retesting to the Central Food Laboratory, for analysis, on payment of the prescribed fee by the petitioner for such retest, and, after getting the analysis report, a copy of it shall be furnished to the petitioner”. With the above direction, the writ petition is disposed of. No order as to costs. _____________ N.V.RAMANA,J 08.10.2009 v v