# M/s Gold Ripe International Pvt. Ltd., Meerut v. A.D.G., Directorate of Revenue Intelligence Lko. & Ors

- **Citation:** (2023) 10 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Writ Tax No. 495 of 2021
- **Bench:** Saumitra Dayal Singh, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gold-ripe-international-pvt-ltd-meerut-v-a-d-g-directorate-of-revenue-49535
- **Pages:** 13

## Headnote

Sri Ashok Singh, C.S.C., Sri Krishna Agarwal, Sri
Sudhanshu Kumar, Sri Swapnil Kumar, Sri Uma
Nath Pandey

Held: The petitioner, engaged in importing and
repacking Ethephon, challenged the detention
and seizure of goods under the Customs Act,
1962,
alleging
no
prohibition
existed
on
Ethephon's import under the Insecticides Act,
1968, and claiming exemption under Section
804 INDIAN LAW REPORTS ALLAHABAD SERIES
38(1)(b) of the Insecticides Act. The Court held
that Ethephon, being a scheduled insecticide,
required prior registration under Section 9 of the
Insecticides Act, and non-compliance rendered it
"prohibited goods" under Section 2(33) of the
Customs Act, liable to seizure under Section 110
read with Section 111(d). The claim of
exemption under Section 38(1)(b) required
factual
inquiry,
inappropriate
for
writ
jurisdiction, and was left open for adjudication
in pending proceedings under Section 124 of the
Customs Act. The Court declined to set aside
the
seizure
memorandum
but
directed
expeditious conclusion of adjudication proceedings
within three months, subject to the petitioner filing
a reply to the show cause notice within four
weeks.

Writ petition disposed of with directions.

Cases Referred:

## Text

_Characters 0–39,915 of 43,774. This is a partial read: ask again with offset=39915 for what follows._

10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
803
on any 1 [industry] or local authority, as the
case may be.]

(2) An order of assessment made under
sub-section (1) 6 [or sub-section (1A)] shall
specify the date within which the cess shall be
paid to the State Government.
(3) A copy each of the order of assessment made
under sub-section (1) 6 [or sub-section (1A)]
shall be sent to the person or, as the case may
be, to the local authority concerned and to the
State Government.

(4) The State Government shall, through
such of its officers or authorities as may be
specified by it in this behalf by notification in
the Official Gazette, collect the cess from the
person or local authority liable to pay the same
and pay the amount so collected to the Central
Government in such manner and within such
time as may be prescribed. "

8. In the present case, specific assertion of the
counsel for the petitioner is that no opportunity
of hearing was granted and was not even dealt
with by the appellate Court while recording the
reasoning while dismissing the appeal preferred
by the petitioner. The assessment orders also do
not indicate any opportunity of hearing being
granted to the petitioner. The assessment orders
are also bad in law as the same does not record
any reason whatsoever in determining the
quantum of cess against the petitioner. In the
Act and the provisions quoted herein above,
although there is no specific provision for
opportunity of hearing prior to passing of the
assessment orders, it is fairly well settled that
any order more so which is expropriatory in
nature has to adhere to the principle of natural
justice, even if not specifically provided as also
explained by the Supreme Court in the case of
M/S Dharmpal Satyapal Ltd. Versus Dy.
Commissioner of Central Excise, Gauhati &
Others (2015) 8 SCC 519. Thus on the face of
the assessment orders, there is a violation of
principle of natural justice. The submission of
the counsel for the respondent that the appeal
provided under Section 13 of the 1977 Act, in
fact is a post decisional hearing cannot be
accepted for the sole reason that Section 13 of
the Act by the very word used in the statute is
an appeal against an order of assessment and
cannot be termed as post decisional hearing as
is argued by the counsel for the respondent.

9. Thus, for the reasons recorded above,
and the fact that the assessment orders have
been passed in violation of principle of natural
justice and are also an unreasoned order, cannot
be sustained and thus on that limited ground the
assessment orders as well as the appellate order
are quashed. The assessing authority shall have
the liberty to pass a fresh order strictly in
accordance with law, if so advised.

10. The writ petition stands disposed of.
----------
(2023) 10 ILRA 803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ Tax No. 495 of 2021

M/s Gold Ripe International Pvt. Ltd.,
Meerut ...Petitioner
Versus
A.D.G.,
Directorate
of
Revenue
Intelligence Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohit Singh, Sri Ajay Kumar Rai, Sri Nishant
Mishra, Pratima Srivastava, Priyanka Midha, Sri
Ram M. Kaushik, Sri Priyadarshi Manish, Sri Anil
Kumar

Counsel for the Respondents:
Sri Ashok Singh, C.S.C., Sri Krishna Agarwal, Sri
Sudhanshu Kumar, Sri Swapnil Kumar, Sri Uma
Nath Pandey

Held: The petitioner, engaged in importing and
repacking Ethephon, challenged the detention
and seizure of goods under the Customs Act,
1962,
alleging
no
prohibition
existed
on
Ethephon's import under the Insecticides Act,
1968, and claiming exemption under Section
804 INDIAN LAW REPORTS ALLAHABAD SERIES
38(1)(b) of the Insecticides Act. The Court held
that Ethephon, being a scheduled insecticide,
required prior registration under Section 9 of the
Insecticides Act, and non-compliance rendered it
"prohibited goods" under Section 2(33) of the
Customs Act, liable to seizure under Section 110
read with Section 111(d). The claim of
exemption under Section 38(1)(b) required
factual
inquiry,
inappropriate
for
writ
jurisdiction, and was left open for adjudication
in pending proceedings under Section 124 of the
Customs Act. The Court declined to set aside
the
seizure
memorandum
but
directed
expeditious conclusion of adjudication proceedings
within three months, subject to the petitioner filing
a reply to the show cause notice within four
weeks.

Writ petition disposed of with directions.

Cases Referred:

1. Commissioner of Income Tax, Madras Vs R.
Venkataswamy Naidu, AIR 1956 SC 522

2. Kaka Overseas Ltd. Vs Union of India, 2021
(376) ELT 452 (Bom.);

3. M.M. Traders Vs Commissioner of Customs,
2023 (383) ELT 439 (Del.);

4. M. Chandrashekhar Vs Deputy Commissioner of
Customs, Cochin, 2018 (364) ELT 33 (Ker.);

5. Paper Products Ltd. Vs Commissioner of Central
Excise, 1999 (112) ELT 765 (SC);

6. Commissioner of Cus. (Exports), Chennai Vs
Synergies Castings Ltd., 2014 (313) ELT 50

7. (Mad.); Jaymatajee Enterprise Vs Commissioner
of Customs (Preventive), 2020 (10) ADJ 350;

8. Shivashish Dwivedi Vs Food Safety and
Standards Authority of India, WP (C) No.
13025/2018

9. (Del.); Additional District Magistrate (ReVs)
Delhi Admn. Vs Siri Ram, (2000) 5 SCC 451;

10. Maharashtra State Board of Secondary and
Higher
Secondary
Education
Vs
Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27.
(Delivered by Hon'ble Saumitra Dayal Singh
, J. & Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Pridarshi Manish (through
video conferencing) along with Sri Anil
Kumar holding brief of Sri Mohit Singh,
learned counsel for the petitioner and Sri
Krishna Agrawal, learned counsel for the
Revenue. None other has appeared in these
proceedings.

2. The present writ petition has been
filed for various relief described in the Relief
clause. However, at present Sri Pridarshi
Manish has pressed the prayer nos. B, D, E
and F. They read as below:

"B. Issue a writ, order or direction in
the nature of mandamus to the Respondents
to release the goods detained at the factory
premises of the Petitioner Company; and / or
D. Issue a writ of declaration to declare the
search conducted at the factory premises,
office premises as well as the residential
premises of one of the directors of the
Petitioner Company is illegal; and/or

E. Issue a writ, order or direction in the
nature of mandamus to direct the Respondent
to release the goods which has been illegally
detained by panchanama dated 08.07.2021
(Annexure P-38); and/or

F. Issue a writ, order or directions in
the natue of certiorari to set-aside the
seizure memorandum dated 23.07.2021;
and/or"

3.

The
petitioner
is
a
duly
incorporated company. It is engaged in the
business of import, manufacture, and
trading in Ethylene Ripener/Ethephon. For
that, it imports bulk quantities of that
commodity from China and repacks the
same in smaller packings. At present, the
petitioner imported 23 metric tons Ethylene
Ripener/Ethephon 20%, in bags weighing
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
805
25 Kgs. Each, against Invoice dated
18.05.2021. Those, goods were shipped
from China on 24.05.2021 and arrived at
I.C.D. Dadri against Bill of Entry bearing
No. 4477470 dated 28.06.2021. There is no
dispute about the computation of custom
duty and its payment thereof. In the
meanwhile, on 24.06.2021, a team of
Directorate of Revenue Intelligence, Noida
conducted a search at the business premises
of the petitioner at Khasra No. 1310,
village, Kashi, Gagol Road, Meerut.
Occasioned by the facts discovered during
that search and on account of nature of
goods being presently imported by the
petitioner, first, the goods being imported
i.e.,
982
bags
of
Ethylene
Ripener/Ethephon weighing 24.5 Metric
Tons and finished goods Ethylene Ripener
(Mango), 573 bags weighing 100 kgs and
Ethylene Ripener (Banana), 57 bags
weighing 250 Kg. were detained. At that
stage, the petitioner filed its reply to the
detention
memo
being
reply
dated
01.07.2021. While that reply was pending,
the petitioner filed the present writ petition
to assail the Detention Memo as also search
and seizure operation. During the pendency
of the writ petition, seizure order dated
23.07.2021 came to be passed. That has
been
annexed
to
the
Amendment
Application (allowed earlier). Thus, the
entire quantity of goods detained have been
seized under Section 110 of Customs Act,
1969 (hereinafter referred to as 'the Act').
At present, the petitioner has also been
issued a Show Cause Notice under Section
124
of
the
Act
dated
21.12.2021.
Confiscation proceedings are pending.

4. First it may be noted, upon urgency
pressed, the matter was fixed for a final
hearing, today. Since, the issue of validity
of the search was involved, we put a query
to the learned counsel for the petitioner, if
he would be pressing that challenge raised
as it would entail summoning of the
original records before any firm conclusion
may be drawn as to existence or otherwise
of any 'reason to believe' to justify the
authorization for the search. Due to the
urgency, learned counsel for the petitioner
stated, the challenge to the search is not
being pressed as that would involve further
delay in adjudication of the dispute
pertaining to seizure. Accordingly, prayer
no. C and D of the writ petition are not
pressed, at this stage, without prejudice to
the rights of the petitioner to raise
appropriate grounds of challenge (as may
otherwise be available), in the statutory
proceedings.

5. As to the detention and seizure,
first it is the submission of the learned
counsel for the petitioner - under Section
110 read with Section 111(d) of the Act,
only such goods may be seized and or be
confiscated as may have been imported
contrary to any prohibition imposed either
under the Act or any other law for the time
being in force. Referring to the provisions
of the Act, it has been submitted that no
such prohibition has been imposed either
on Ethephon or Ethylene Ripener.

6. Second, referring to the reason
given in the seizure order and the
provisions
of
Insecticide Act,
1968
(hereinafter referred to as 'Insecticide Act'),
it has been submitted though Ethephon is
an insecticide yet there is no prohibition in
law created under the Insecticide Act on the
import or manufacture of Ethephon. Merely
because Ethephon is an insecticide and
therefore, a registration may be required to
be obtained for its manufacturer or import,
by virtue of regulatory provision Section 9
of the Insecticide Act, no prohibition on its
806 INDIAN LAW REPORTS ALLAHABAD SERIES
manufacture or import may arise or be
inferred in law.

7. Third, to make that submission
complete, heavy reliance has been placed
on the language of Section 38(1)(b) of the
Act to submit Ethephon is not an
insecticide used either to prevent, destroy,
repel, or mitigate any animal or plant life,
not useful to human beings. Being a
ripening agent, it does not cause such
harmful effects on any plant or animal life
form. Therefore, in his submission the
commodity Ethephon remains exempt from
the regulatory provisions of the Insecticides
Act, 1968. Though it is an insecticide, it
falls within the sub-category of those goods
that are exempt.

8. Fourth, it has been submitted that
the petitioner had taken a specific objection
in that regard in its reply dated 01.07.2021
(Annexure P-35). However, the same has
not been dealt with or decided while
passing the seizure order dated 23.07.2021.

9. Last reference has been made to
section 11(3) of the Act to submit no
proceeding under the Customs Act may be
undertaken
on
the
strength
of
any
prohibition in law created under any other
law i.e., other than the Custom Act unless
specifically authorized by a notification
issued under Section 11(3) of the Act.
Since, no such notification has been issued
in
the
present
facts,
the
entire
proceedings of search, seizure, detention,
and confiscation are without jurisdiction.

10.

Replying
to
the
above
submissions,
Shri.
Krishna
Agarwal
learned counsel for the revenue would
rely on Section 17(1)(c) of the Insecticide
Act to submit - no person may import or
manufacture any insecticide except in
accordance
with the conditions
for
registration. Referring to Section 17(2) of
the Insecticide Act, it has been submitted
no
person
may
manufacture
any
Insecticide except in accordance with
conditions of license issued to him for
that purpose. In so far as the petitioner
had not obtained any registration to
import Ethephon and further in so far
as it has not obtained license to
manufacture
Ethephon,
it
was
prohibited under the Insecticide Act to
import
or
manufacture
that
commodity. Here reliance has been
placed on the definition of the terms
of Insecticide. It has been further
emphasized,
undisputedly
the
commodity Ethephon is an insecticide.

11. As to the exemption claimed,
it has been submitted that Section
38(1) (b), does not apply to the
commodity Ethephon. In any case, it
has been submitted that that is a
factual claim which would require
evidence to be led and facts to be
considered by the statutory authorities
before any firm conclusion may be
drawn. That stage is still open to the
petitioner in view of the confiscation
proceeding initiated under Section 124 of
the Act, being pending.

12. Referring to Section 2(33) of the
Act, it has been submitted by virtue of
operation of law, noted above Ethephon
remains prohibited goods that may be
proceeded against under the Act, without
any further notification being required in
terms of Section 11(3) of the Act.

13. Having heard learned counsel
for the parties and having perused the
record, Section 110(1) of the Act reads as
below:
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
807

"110. Seizure of goods, documents
and things.
(1) If the proper officer has reason to
believe that any goods are liable to
confiscation under this Act, he may seize
such goods:

Provided
that
where
it
is
not
practicable to seize any such goods, the
proper officer may serve on the owner of
the goods an order that he shall not
remove, part with, or otherwise deal with
the goods except with the previous
permission of such officer."

14. Section 111(d) of the Act reads as
below:

"111. Confiscation of improperly
imported goods, etc.

The following goods brought from a
place outside India shall be liable to
confiscation-

(a) .....

(b) .....

(c) .....

(d) any goods which are imported or
attempted to be imported or are brought
within the Indian customs waters for the
purpose of being imported, contrary to any
prohibition imposed by or under this Act or
any other law for the time being in force;"

15. Per se the import of the
commodity Ethephon is not prohibited
under the Act. To that extent, the
submission being advanced by learned
counsel for the petitioner is correct.
However, it is also plain from the reading
of Section 111(d) of the Act that the
consequence of confiscation of any goods
being imported may also arise if such
goods are attempted to be imported
contrary to any prohibition imposed under
any 'other law' for the time being in force.
Undoubtedly, the Insecticides Act is a law
that was in force when the import of
Ethephon was attempted by the petitioner.
Therefore, it must be seen if there existed
(on the relevant date), any prohibition on
the
import
of
Ethephon,
under
the
provisions of the Insecticides Act.

16. Section 9(1) of the Insecticides
Act reads as under:

"9. Registration of insecticides.

(1) Any person desiring to import or
manufacture any insecticide may apply to
the
Registration
Committee
for
the
registration of such insecticide and there
shall be a separate application for each
such insecticide:

Provided that any person engaged in
the business of import or manufacture of
any insecticide immediately before the
commencement of this section shall make
an
application
to
the
Registration
Committee within a period of [seventeen
months]
from
the
date
of
such
commencement for the registration of any
insecticide which he has been importing or
manufacturing before that date:

[Provided further that where any
person referred to in the preceding proviso
fails to make an application under the
proviso within the period specified therein,
he may make such application at any time
thereafter on payment of a penalty of one
hundred rupees for every month or part
thereof after the expiry of such period for
the registration of each such insecticide.]"

17. Then, Section 17(1)(c) of the
Insecticides Act reads as below:

"17. Prohibition of import and
manufacture of certain insecticides.
(1) No person shall, himself or by any
person
on
his
behalf,
import
or
manufacture-
808 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) .....

(b) .....

(c)
any
insecticide
except
in
accordance with the conditions on which it
was registered;"

18. The term "insecticide" has been
defined
under
Section
3(e)
of
the
Insecticides Act. It reads as below:

"3. Definitions.

In this Act, unless the context
otherwise requires,

(a) .....

(b) .....

(c) .....

(d) .....

(e) "Insecticide" means-

(i) any substance specified in the
Schedule; or

(ii) such other substances (including
fungicides and weedicides) as the Central
Government may, after consultation with
the Board, by notification in the Official
Gazette, include in the Schedule from time
to time; or

(iii) any preparation containing any
one or more of such substances;"

19. It is an admitted fact, Ethephon is
a
scheduled
commodity
under
the
Insecticides Act. Therefore, by virtue of the
language of section 17(1)(c) read with
Section 3(e)(i) of the Insecticides Act, a
stipulation in law does arise on the import
of Ethephon to allow its import only upon
fulfillment
of
conditions
of
prior
registration obtained under Section 9 of the
Insecticides Act. To that extent, the second
submission advanced by learned counsel
for the petitioner that the requirement to
obtain a prior registration under the
Insecticides Act is only a regulatory
measure
not
provided
with
any
consequence (for its non-compliance), is
misconceived.

20. Then, Section 2(33) of the Act
defines the term "prohibited goods". It
reads:

"2. Definitions.

In this Act, unless the context
otherwise requires,--

(1) .....

(2) .....

.......

.......

(33) "prohibited goods" means any
goods the import or export of which is
subject to any prohibition under this Act or
any other law for the time being in force
but does not include any such goods in
respect of which the conditions subject to
which the goods are permitted to be
imported or exported, have been complied
with;"

21. In view of the above, the
existence of prior registration becomes a
condition essential to be fulfilled before a
Scheduled commodity may be imported
into the country. By employing the words
"no
person
shall
.......
import
or
manufacture ....... any insecticide except in
accordance with the conditions on which it
was registered", a prohibition in law has
been set in place against import of an
insecticide, in absence of registration under
the
Insecticides
Act.
Unless
such
registration pre-exists, the occasion to
comply with the conditions of registration
may never arise.

22. Consequently, a person holding a
Registration
Certificate
under
the
Insecticides Act, particularly with respect
to Ethephon alone may be eligible to
import the same, for reason of that
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
809
commodity being a Scheduled insecticide.
Second, that person would earn the right to
import Ethephon, upon fulfillment of the
conditions of its registration.

23. On the converse, any person not
holding such registration or not fulfilling
the further conditions subject to which he
may have been registered would remain
ineligible to cause import of such goods. At
his
hands
Ethephon
would
remain
"prohibited goods", by virtue of the
definition given to that term, under Section
2(33) of the Act.

24. As to the third submission
advanced by learned counsel for the
petitioner, that Ethephon is exempt from
the operation of Insecticides Act, Section
38 of the Insecticides Act reads as below :

"38. Exemption. - (1) Nothing in this
Act shall apply to -

(a) the use of any insecticide by any
person for his own household purposes or
for kitchen garden or in respect of any land
under his cultivation;

(b)
any
substance
specified
or
included
in
the
Schedule
or
any
preparation containing any one or more
such substances, if such substance or
preparation is intended for purposes other
than preventing, destroying, repelling or
mitigating any insects, rodents, fungi,
weeds and other forms of plant of animal
life not useful to human beings."

25. First, by virtue of Section 38(1)(a)
the Insecticides Act does not apply to
household
insecticides
or
garden
insecticides or such insecticides that may
be used with respect to land under a
persons' cultivation. Second, by virtue of
Section 38(1)(b), the provisions of the
Insecticides Act would not apply to any
scheduled
commodity
or
any
other
commodity
containing
the
scheduled
commodity if the same were intended for
any purpose - other than (i) preventing, (ii)
destroying,
(iii)
repelling
and,
(iv)
mitigating insects, rodents, fungi and other
forms of plant or animal life 'not useful to
human beings'.

26. Thus, Section 38(1)(a) excludes
the applicability of the Insecticides Act,
directly, viz a viz types of insecticides that
may be used for household purposes or for
kitchen garden purposes or in respect of
land under cultivation. Section 38(1)(b)
excludes those insecticides from the
operation of the Insecticides Act if they are
not used for the purpose of (i) preventing,
(ii) destroying, (iii) repelling and, (iv)
mitigating various types of plant and
animal life that may not be useful to human
beings.

27. Thus, any insecticide that may be
harmful to the occurrence, sustenance,
growth, and propagation of various types of
plant and animal life would continue to fall
under the regulatory law and therefore the
prohibitory umbrella of the Insecticides
Act. Thus, an insecticide that may cause
any of the above-described effects on any
insect or rodent or fungus or weed or other
form of plant or animal life, would not be
exempt from the applicability of the
Insecticides Act.

28. In general terms, the Parliament
has been extra careful. It has first excluded
the goods that have limited/specific use
such as household insecticides, kitchen
garden
insecticides
and
agricultural
insecticides. Then, it has excluded from the
applicability of the Act any insecticide that
may not potentially harm either any insects
or rodents or fungi or other forms of plant
810 INDIAN LAW REPORTS ALLAHABAD SERIES
or animal life though such life form may
not be perceived to be useful to human
beings.

29. By employing the phrase "other
forms of plant and animal life", the scope
and stretch of the Insecticides Act has been
extended to involve the widest possible
inclusion - of protecting all or any life
forms, whether plant or animal. Then, upon
employment of the phrase "is intended for
purposes other than" in conjunction with
the phrase "not useful to human beings",
the Parliament has included within the
ambit
of
the
Insecticides
Act
all
insecticides that may have the effect of
either preventing or destroying or repelling
or mitigating, any type of plant and/or
animal life form, notwithstanding the fact
that such life form may itself be perceived
to be useless or non-essential to human
existence.
The
existence
of
such
interaction, or the perception of its
uselessness to human beings or its
invisibility to the naked eye would not
militate against its inclusion in the list of
insecticides whose import and manufacture
must be regulated under the Insecticides
Act.

30. Though couched in a single subSection,
Section
38(1)(b)
of
the
Insecticides Act, beautifully encapsulates
the ancient Indian tenet "Vasudhaiva
Kutumbakam". The world we live in, is
shared and it belongs to one family i.e.
human beings share it will all life forms -
plant and animal. Just as one may never
look to do anything, even inadvertently,
that may unduly harm a member of his
family howsoever far removed (in degree
and distance) the latter may be located, so
also human beings (as a species), may not
employ
insecticides
that
may
cause
specified harms to another species of either
plant or animal life forms, since we share
our wonderful planet with them, even
though we may not perceive a direct or
visible interaction or inter-dependency with
them. So even a simple fungus or an algae,
is an important member of our world. In the
interest of each life form, any insecticide
that may have the potential to cause a
specified harm, through (its use), would
remain regulated under the Insecticide Act.

31. In the context of potential vast
devastation
that
may
arise
upon
unregulated use of insecticides, Section 38
of the Insecticides Act consciously does not
employ any word or phrase to restrict the
operation of the Insecticides Act to only
such insecticides as may be 'intended' to
cause any of the four specified harmful
effects. The correlation between intention
and harm, does not exist. On the contrary, if
an insecticide by nature of its properties
and effect, has the potential to cause such
harmful effect, then, even if such harmful
effect may arise incidentally or as a byeproduct, either upon its use or in the
process of its manufacture or import, it will
remain regulated by that law.

32. Read in its entirety, Section
38(1)(b) of the Insecticides Act only seeks
to exclude from its applicability such
insecticides
as
may
not
have
any
deleterious effect to the survival and wellbeing of various forms of plant and animal
life, generally. While it is difficult to
imagine, any man made insecticide that
may not cause any harmful effect to any
form of plant and/or animal life at an
individual specimen/micro level, for that is
the exact purpose of its manufacture and
use, perhaps the legislature intends to
exempt from the applicability of the
Insecticides Act, only such insecticides as
may not cause specified harm to any form
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
811
of plant and / or animal life, at the
existential/macro level.

33. Thus, Section 38(1)(a) of the
Insecticides
Act,
seeks
to
exclude
household insecticides, kitchen garden
insecticides and such insecticides that may
be used in the cultivation over land. Truly,
it is an exception or a proviso to the main
provision contained in Section 38(1)(b) of
that Act. Thus, though an insecticide 'X'
may cause an effect specified under Section
38(1)(b), on any form of plant or animal
life and may therefore require its import
and/or manufacture to be regulated yet, if
'X' were a household or kitchen garden or
agricultural insecticide, having limited
ability to influence other plant and / or
animal life forms, both in the context of
area to be covered by it and its long term
and other reach/influence, it may still
remain exempt from the operation of the
Insecticides Act.

34. Seen in that light, it would be
premature for the writ Court to reach a fact
conclusion
whether
Ethephon
is
an
insecticide that may not cause any of the
specified harm to any form of plant or
animal life, generally. Neither the Court is
an expert in the science of chemistry or
environment, nor it has any expert
jurisprudential material available to it as
may safely lead it to the conclusion that
import and/or manufacture of Ethephon
may not cause the effect of preventing or
destroying or repelling or mitigating any
insect or rodent or fungi or weed or any
other form of plant or animal life.

35. A fact enquiry would be required
to be conducted before the contention being
canvassed by the learned counsel for the
petitioner
may
be
accepted.
That
consideration has become necessary in the
face of the claim of exemption set up by the
petitioner. That claim must arise and be
tested before the fact-finding authority i.e.,
the statutory authorities.

36. As early as in Commissioner of
Income
Tax,
Madras
vs.
R.
Venkataswamy Naidu, AIR 1956 SC 522,
it came to be settled that the burden to
establish an exemption rests on the person
who claims its existence. That general
principle or rule of evidence was equally
applied to taxation laws. Relevant to our
discussion, it was observed as under :

12. This contention was rejected by the
Income Tax Officer, the Appellate Assistant
Commissioner as well as the Income Tax
Appellate Tribunal. They were of the
opinion that the assessee had failed to
furnish proper materials and had failed to
discharge the burden which lay on it to
prove that the income derived by it from the
sale of milk during the accounting year was
agricultural income. They rightly placed
the burden of proof on the assessee but the
High
Court
erroneously
framed
the
question in the negative form and placed
the burden on the Income Tax Authorities of
proving that the income from the sale of
milk received by the assessee during the
accounting year was not agricultural
income. In order to claim an exemption
from payment of income tax in respect of
what the assessee considered agricultural
income, the assessee had to put before the
Income Tax Authorities proper materials
which would enable them to come to a
conclusion that the income which was
sought to be assessed was agricultural
income. It was not for the Income Tax
Authorities to prove that it was not
agricultural income. It was this wrong
approach to the question which vitiated the
812 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of the High Court and led it to an
erroneous conclusion."

37. Also, it may survive to the
legislature and/or the executive to make an
appropriate declaration in that regard, of
course upon due consideration of relevant
material yet, such action is not shown to
exist, as on date. Thus, at present, Ethephon
being a scheduled commodity under the
Insecticides Act, it falls outside the scope
of any fruitful discussion if it is an
insecticide
for
the
purpose
of
the
Insecticide Act. Clearly, it is. In absence of
any further fact proven to establish any
exemption available to it under section 38
of the Insecticides Act, prima facie it stands
made out that Ethephon is a regulated
insecticide. It may not be imported or
manufactured,
except
under
a
valid
Registration Certificate etc. and upon
fulfilment of the conditions thereto.

38. Therefore, in the absence of any
further
legislative
and/or
executive
declaration expressed, at present, the only
authority that may deal with the issue of
claim of exemption being made by the
petitioner would be the quasi-judicial
authority under the Act. At present, the
proceedings initiated under Section 124 of
the Act are pending. Pending those
proceedings, we leave the issue of
exemption completely open to be contested
in those proceedings, solely on the strength
of material that may be produced before
that authority.

39. Here it may be noted, issuance of
notification under other enactments such as
the Order dated 20.07.2020 issued by the
Food Safety and Standards Authority of
India (FSSAI in short) is extraneous to test
if
Ethephon
is
exempt
under
the
Insecticides Act or is not prohibited under
the Act. Merely because Ethephon is a
permitted ripening agent under the Food
Safety and Standards Act, 2006 may only
lead to an inference that per se, it is not
harmful to human health, when used as a
ripening agent. Many insecticides are not
considered harmful to humans. Yet, they
are harmful to other forms of plant and
animal life. Precisely, for that reason, the
general exemption granted under Section
38(1)(b) of the Insecticides Act is restricted
to such insecticides only as may not cause
any of the specified harm to any other plant
or animal life.

40. The FSSAI established under the
Food Safety and Standards Act, 2006 seeks
to guard the health interests of the human
species only. On the other hand, the
Insecticides Act seeks to guard the
minimum existential interest of all life
forms, from the harmful effects that may be
caused by use of an insecticide. To that
extent and for that reason, the Insecticides
Act is both a special Act and an enactment
with wider outreach and spread than the
Food Safety and Standards Act, 2006.

41. In the absence of any conflict
between
the
two
enactments,
the
Insecticides Act would play out to the full,
in face of the FSSAI Act, such that the
permission to use Ethephon as a permitted
ripening agent for human beings does not
ipso facto amount a declaration that it is
non-injurious to all other life forms. To that
extent the notification issued under the
FSSAI Act, remains extraneous to the issue
at hand.

42. As to the fourth submission of the
learned counsel for the petitioner, it is true
that specific objection had been raised by
the petitioner that Ethephon was exempt
under Section 38 of the Insecticides Act.
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
813
The same could have been dealt with at the
stage of seizure. However, we also cannot
overlook the fact that the detention memo
was issued on 24.06.2021 and the seizure
memorandum was prepared on 23.07.2021.
More than two years have passed since
then. Meanwhile the petitioner has been
visited with a Show Cause Notice under
Section 124 of the Act. That proceeding is
still pending.

43. Therefore, for reasons noted
above, we find no good ground to set aside
the seizure memorandum and remit the
matter to the seizing authority to pass a
fresh order, at this stage. Under the scheme
of the Act, the seizure memorandum would
remain
subject
to
outcome
of
the
confiscation
proceeding.
Those
being
pending before the adjudicatory authority,
keeping in mind the further fact that the
adjudication on the issue whether Ethephon
is exempt under the Insecticide Act, would
have a direct bearing on all subsequent
transactions of import and manufacture of
that commodity, by the petitioner, we deem
it desirable and in the interest of justice that
the adjudication proceedings be expedited
and concluded without further delay.

44. As to the last submission
advanced by the learned counsel for the
petitioner, Section 11(3) of the Act reads as
below:

"11. Power to prohibit importation or
exportation of goods.

......

....

(3) Any prohibition or restriction or
obligation relating to import or export of
any goods or class of goods or clearance
thereof provided in any other law for the
time being in force, or any rule or
regulation
made
or
any
order
or
notification issued thereunder, shall be
executed under the provisions of that Act
only if such prohibition or restriction or
obligation is notified under the provisions
of this Act, subject to such exceptions,
modifications or adaptations as the Central
Government deems fit.

45. Plainly, that provision of law has
not been enforced. Though inserted by Act
No. 13 of 2018 vide Section 59 thereof, it's
date of enforcement has yet not been
notified. Hence, that provision of law is yet
lifeless. At present, the provisions of
Section 110 (1) read with Section 111(d)
read with Section 2(33) of the Act read
with Sections 9 and 17 of the Insecticides
Act continue to allow the Customs
authorities to proceed under the Act against
the import of Ethephon by the petitioner as
it did not have the requisite Registration
Certificate under the Insecticides Act. To
that extent the impugned proceedings are
not lacking in inherent jurisdiction.

46. The reliance placed by learned
counsel for the petitioner on Kaka
Overseas Ltd. Vs. Union of India, 2021
(376) ELT 452 (Bom.); M.M. Traders vs
Commissioner of Customs, 2023 (383)
E.L.T. 439 (Del.); M. Chandrashekhar vs
Deputy
Commissioner
of
Customs,
Cochin, 2018 (364) E.L.T. 33 (Ker.);
Paper Products Ltd. Vs. Commissioner
of Central Excise, 1999 (112) E.L.T. 765
(S.C.); Commissioner of Cus. (Exports),
Chennai vs Synergies Castings Ltd., 2014
(313) E.L.T. 50 (Mad.); Jaymatajee
Enterprise
(Seller)
&
Ors.
Vs
Commissioner of Customs (Preventive)
& Ors., 2020 (10) ADJ 350; Shivashish
Dwivedi & Anr. Vs Food Safety and
Standards Authority of India & Ors.,
W.P. (c) No. 13025/2018 decided on
30.01.2020;
Additional
District
814 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate (Rev.) Delhi Admn. Vs Siri
Ram,
(2000)
5
SCC
451
and;
Maharashtra State Board of Secondary
and Higher Secondary Education & Anr.
Vs Paritosh Bhupeshkumar Sheth &
Ors., (1984) 4 SCC 27 is misplaced. The
ratio inhering in those decisions does not
support the petitioner's case.

47. In Kaka Overseas Ltd. (supra), the
primary issue involved was to the legality
and propriety of the decision taken by the
quasi-judicial authority, in face of the order
of the Bombay High Court in case pending
before that High Court. Such is not the case
here. In M.M. Traders (supra), the
importer made a statement before the Delhi
High Court to obtain an import permit from
the Central Insecticide Board and the
Registration Committee. Subject to such
import permit being issued, that High Court
made a conditional order enabling the
petitioner before it to thereafter approach
the custom authority. Such stage has not
arisen in the
present
case.
In
M.
Chandrashekhar (supra), the commodity
involved was Ethylene Di-chloride, not
Ethephon. Also, there existed a trade notice
issued by the Commissioner of Customs,
Mumbai permitting the import transaction
to arise with respect to that commodity. In
the present case, the customs authorities
have never permitted the import of
Ethephon.
In
Paper
Products
Ltd.
(supra), there existed Circulars issued by
the higher administrative authority under
the Excise Act. In absence of any Circular
existing in the present case, that ratio is of
no application. In Synergies Castings Ltd.
(supra), the Madras High Court dismissed
the appeal filed by the revenue against the
order of the Tribunal on the reasoning that
there was no requirement to obtain
Registration Certificate or Import Permit
for the import as per Exim policy. That
consideration does not arise here in view of
the specific provisions of the Insecticide
Act. In Jaymatajee Enterprise (Seller)
(supra), challenge was raised to the seizure
of betel nuts. Those goods being not
prohibited and there being no application of
the Insecticide Act, we find that ratio to be
wholly distinguishable.

48. In Shivashish Dwivedi (supra), a
public interest litigation was filed before
the Delhi High Court seeking an injunction
against the respondent State from restrain
import of artificial fruit ripener. That
challenge was declined to be entertained.
For ready reference, that order reads as
below:

"This public interest litigation has
been preferred with the following as been
preferred with the following prayers:-

"It is, therefore, most respectfully
prayed that in view of the aforesaid facts
and circumstances, this Hon'ble Court may
be pleased to;

a) Issue a writ of Mandamus or
Certiorari or any other appropriate writ or
direction to quash/repeal the Direction
dated 16.08.2018 and the guidance note
No. 04 of 2018 released by the Respondent
No. 1, as illegal and void ab initio;