Customs Detention of Perishable Goods: Section 110, Re-testing and Provisional Release

A container of food, fruit or agricultural produce sitting at the port while Customs decides what to do with it is a business emergency, not an abstract legal question – every week of delay is inventory rotting on demurrage. This guide explains the customs detention of perishable goods and how release actually works: the deadline the department itself is under, provisional release under section 110A, what happens when Customs and the food-safety regulator disagree, and what the courts are currently ordering.

When Customs Detains a Perishable Consignment

Section 110A lets the Commissioner release seized goods, documents or things pending adjudication, against a bond and whatever security the Commissioner requires. This provision is particularly important where perishable goods are detained by Customs, as the importer may seek their provisional release before the adjudication is complete. CBIC’s own Circular 35/2017-Customs sets out the framework administratively: the bond should ordinarily cover the full or estimated value of the goods, with additional security or a bank guarantee to cover the duty, any differential duty, and the fine or penalty that could follow, graded to the nature of the goods and the margin involved; the circular expects reasons to be recorded where the standard conditions are varied, and grounds for outright refusal are largely confined to prohibited goods, goods liable to absolute confiscation, non-cooperation, or a genuine public-interest concern. Courts have read this as guidance, not a ceiling: a Madras High Court decision in 2026 (Vimpro Tech v. Commissioner of Customs) held that a CBIC circular cannot override or restrict the statutory discretion under section 110A, and that the mere pendency of an investigation is not by itself a ground to refuse release where revenue can be protected through appropriate conditions. Equally, the conditions imposed must be proportionate to that purpose rather than a way of keeping the goods detained in substance – the Delhi High Court reduced a bank-guarantee demand from around 130% of the goods’ value to 30% in 2025 (Rocktek Infra Services v. Principal Commissioner of Customs (Import)) where the effect of the original demand was to price the importer out of release altogether.

The Department’s Own Clock: Section 110(2)

Since its substitution by the Finance Act 2018 (with effect from 29 March 2018), section 110(2) provides that where no notice under section 124(a) is given within six months of the seizure, the goods “shall be returned to the person from whose possession they were seized.” A proviso allows a Principal Commissioner or Commissioner to extend that period by a further period not exceeding six months – one year in all – but only for reasons recorded in writing, and only after the importer has been given notice and a hearing before the original six months expires. This codifies a safeguard the Supreme Court had already required as a matter of natural justice: an extension cannot be sprung on the importer after the clock has already run out. Provisional release under section 110A does not pause or replace this deadline – a 2012 Delhi High Court ruling (Jatin Ahuja v. Union of India) held that release of the goods does not extend the department’s own time to issue a notice, so the section 110(2) clock keeps running even while the goods are out on bond.

Getting the Goods Out: Provisional Release under Section 110A

Section 110A lets the Commissioner release seized goods, documents or things pending adjudication, against a bond and whatever security the Commissioner requires. CBIC’s own Circular 35/2017-Customs sets out the framework administratively: the bond should ordinarily cover the full or estimated value of the goods, with additional security or a bank guarantee to cover the duty, any differential duty, and the fine or penalty that could follow, graded to the nature of the goods and the margin involved; the circular expects reasons to be recorded where the standard conditions are varied, and grounds for outright refusal are largely confined to prohibited goods, goods liable to absolute confiscation, non-cooperation, or a genuine public-interest concern. Courts have read this as guidance, not a ceiling: a Madras High Court decision in 2026 (Vimpro Tech v. Commissioner of Customs) held that a CBIC circular cannot override or restrict the statutory discretion under section 110A, and that the mere pendency of an investigation is not by itself a ground to refuse release where revenue can be protected through appropriate conditions. Equally, the conditions imposed must be proportionate to that purpose rather than a way of keeping the goods detained in substance – the Delhi High Court reduced a bank-guarantee demand from around 130% of the goods’ value to 30% in 2025 (Rocktek Infra Services v. Principal Commissioner of Customs (Import)) where the effect of the original demand was to price the importer out of release altogether.

When Customs and the Food-Safety Regulator Disagree

For food imports, clearance runs through the Food Safety and Standards Authority of India as well as Customs, under section 25 read with section 47(5) of the Food Safety and Standards Act 2006 and regulation 13(1) of the Food Safety and Standards (Import) Regulations 2017. Two questions recur: what happens when Customs wants to re-test a consignment FSSAI has already cleared, and what happens when the food-safety report itself comes back adverse. On the first, a converging and fairly recent line of Bombay High Court authority answers firmly in the importer’s favour: in NBG International Pvt Ltd v. Union of India (2026) the court held that Customs cannot override a valid FSSAI clearance on the strength of a conflicting customs laboratory report, or demand re-testing without demonstrated grounds, describing an attempt to second-guess FSSAI’s statutory role as inappropriate; and in Shivshakti Enterprises v. Commissioner of Customs (2026) the same principle secured release of a consignment FSSAI had already cleared, without the additional security Customs had separately demanded. On the second question – an adverse report – the regulations themselves build in a check: an importer may appeal a Notified Laboratory’s non-conformance finding within fifteen days under regulation 10(6), triggering a reference of the second sample to the Referral Food Laboratory under regulation 10(7); regulation 10(9) similarly lets the Authorised Officer refer a sample to the Referral Laboratory on its own motion where a serious health hazard is suspected; and a rejection report can separately be taken up in a review application within fifteen working days under regulation 15(2)(b). CBIC’s Circular 30/2017-Customs runs a parallel process for the customs side of a laboratory dispute more generally: every result, favourable or adverse, must be communicated to the importer at once; a written re-test request must follow within ten days, naming the laboratory; the re-test is run on the retained or duplicate sample; and where the two reports conflict, the officer must record reasons for preferring one over the other. CESTAT has applied exactly this reasoning to detained food consignments – in two 2026 orders concerning roasted areca nuts (Vandana Trading Company v. Commissioner of Customs (Preventive), Jamnagar), the tribunal held that a suo motu re-test ordered merely because a favourable result was “borderline” did not justify continued detention, and separately that an importer’s undertaking to use goods industrially answers an “unfit for human consumption” finding for the purpose of provisional release – the answer to an adverse food-safety report is conditions, not indefinite detention.

The Fast-Track Disposal Power – and Why Importers Should not Ignore It?

Separately from provisional release, sections 110(1A) and 110(1B) let the Central Government notify categories of seized goods that are subject to “speedy or natural decay,” or that it considers hazardous, for disposal by the department itself even before adjudication is complete – the lead notification is No. 31/86-Customs dated 5 February 1986, later amended to extend the same mechanism to hazardous goods. Before such disposal the officer must prepare an inventory and apply to a Magistrate to certify the inventory, take and certify photographs of the goods, and allow representative samples to be drawn and certified. The safeguard is real, but it cuts against delay on the importer’s side too: because the department has an independent statutory route to dispose of perishable goods it holds, an importer who sits on a re-test request or a provisional-release application risks the goods being disposed of – lawfully – before the underlying dispute is even decided.

How Courts Are Handling the Detention and Release of Perishable Goods

Read together, the pattern is fairly stable: courts move quickly to secure the release of perishable goods detained at the port once a workable set of conditions is on the table. They are increasingly unwilling to let a bare, unexplained laboratory disagreement or an oversized security demand function as a disguised confiscation. But that pattern has a mirror image the department can still rely on – a genuinely adverse finding is not written off, the discretion under section 110A can be exercised to refuse or heavily condition release where the goods are prohibited, under investigation for something more than a paperwork mismatch, or a real public-interest concern under Circular 35/2017’s own criteria is shown, and perishability is a two-edged argument that can just as easily be used to hold an importer to a short, firm timeline as to excuse one.

Frequently asked questions

How long can Customs hold a perishable consignment without issuing a notice?

Section 110(2) requires a show cause notice under section 124(a) within six months of seizure, failing which the goods must be returned. A Principal Commissioner or Commissioner may extend this by a further six months – one year in all – but only for reasons recorded in writing, and only after giving the importer notice and a hearing before the original six months runs out.

Can Customs refuse release only because its own lab report is adverse?

Not automatically. Recent High Court rulings treat a valid FSSAI clearance as close to conclusive and require Customs to show a demonstrated reason before insisting on a conflicting test, and CESTAT has held that a re-test ordered merely because a favourable result was borderline does not justify continued detention.

What is provisional release under section 110A?

Section 110A lets the Commissioner release seized goods pending adjudication against a bond for their value, with security or a bank guarantee covering the duty, differential duty and possible fine or penalty. CBIC’s own Circular 35/2017-Customs sets out the relevant factors and cautions that conditions must be reasonable, not confiscatory.

FSSAI cleared my consignment but Customs still wants to re-test it. Can it?

Two 2026 Bombay High Court rulings have held that once FSSAI, the statutory food-safety regulator, has cleared a consignment, Customs cannot substitute its own or a departmental laboratory’s contrary view without a demonstrated ground, and cannot treat further testing as a reason to keep goods detained indefinitely.

What happens if the goods are genuinely found unfit for human consumption?

An adverse finding does not mean automatic destruction. Courts and CESTAT have repeatedly ordered conditional release instead – on a bond, with an undertaking restricting the goods to industrial, non-food use, or for re-export – though a genuinely adverse finding can still carry a real redemption fine and penalty.

Can I ask for a re-test of my own sample?

Yes. Under the FSSAI Import Regulations an importer may appeal a non-conformance report within fifteen days and have the second sample sent to the Referral Food Laboratory, and CBIC’s Circular 30/2017-Customs separately requires a written re-test request within ten days of being told of an adverse result, naming the laboratory and testing on the retained sample.

Sources

• Customs Act 1962, sections 110, 110A and 124 — India Code.
• Notification No. 31/86-Customs, 5 February 1986 (as amended), issued under section 110(1A).
• Food Safety and Standards Act 2006, sections 25 and 47(5); Food Safety and Standards (Import) Regulations 2017, regulations 10(6), 10(7), 10(9), 13(1) and 15(2)(b) — FSSAI.
• CBIC Circular No. 30/2017-Customs, 18 July 2017 (F. No. 450/15/2017-Cus IV).
• CBIC Circular No. 35/2017-Customs, 16 August 2017 (F. No. 394/13/2016-Cus (AS)).
• Jatin Ahuja v. Union of India, Delhi High Court, decided 4 September 2012.
• Vandana Trading Company v. Commissioner of Customs (Preventive), Jamnagar, CESTAT West Zonal Bench, Ahmedabad, Final Orders of April 2026.
• Priyanka Maurya v. Union of India, Calcutta High Court, WPO/1197/2024, decided 3 July 2026.
• NBG International Pvt Ltd v. Union of India, Bombay High Court, 2026:BHC-AS:14241-DB, decided 6 April 2026.
• Shivshakti Enterprises v. Commissioner of Customs, Bombay High Court, W.P. No. 6043 of 2026, decided 31 August 2026.
• Punjab and Haryana High Court, CUSAP Nos. 4 and 5 of 2024, decided 14 November 2024.
• Rocktek Infra Services Pvt Ltd v. Principal Commissioner of Customs (Import), Delhi High Court, 2025.
• Vimpro Tech v. Commissioner of Customs (Gr. 2), Chennai, Madras High Court, (2026) 45 Centax 206, decided 5 August 2026.
• Radha Industries v. Commissioner of Customs, Madras High Court, decided 6 January 2024.