Custom, Excise & Service Tax Tribunal
Rajesh Agarwal Raju Sagar vs Commissioner, Customs-Indore on 7 January, 2021
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Customs Appeal No. 50170 of 2021
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Customs Appeal No. 50170 of 2021
(Arising out of order-in-appeal No. IND-EXCUS-000-APP-092-20-21 dated 29.12.2020
passed by the Commissioner (Appeals), Customs, Central Goods & Service Tax &
Central Excise, Indore (G.G.)
Rajesh Agarwal @ Raju Sagar Appellant
C/o Sanstha Karuna Sagar
209, M. G. Road
Malharganj, Indore (M.P.)
VERSUS
Commissioner of Customs Respondent
B-Zone, 3rd Floor
12/2/7 and 12/2/8
Village - Pipliakumar, Nipania
Indore, M.P.
APPEARANCE:
Shri Ashish Batra, Advocate for the appellant
Shri Yashvir Singh, Authorised Representative for the respondent
CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
FINAL ORDER NO. 50001/2021
DATE OF HEARING/DECISION: 07.01.2021
ANIL CHOUDHARY:
The present appeal is being field by the appellant Mr.
Rajesh Agrawal @ Raju Sagar („appellant) aggrieved against the
impugned Order in Appeal No. IND- EXCUS- 000- APP- 092- 20- 21
dated 29.12.2020 and the Order-in-Original No.
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11/JC/CUS/IND/2019 - 20 dated 19.02.2020 passed by the
Commissioner (Appeal) and the Joint Commissioner respectively,
upholding the absolute confiscation of the subject exotic birds and
animals owned by the appellant, by considering the same to be
„prohibited‟ and „smuggled‟.
2. Briefly stated, the facts for the purposes of the present
appeal are as under:
2.1 The appellant herein is a citizen of India who has
dedicated his life to serve the animals and birds through his NGO
"Sanstha Karuna Sagar". The Appellant is an avid pet lover, social
worker and actively involved in rescue and treatment of animals.
2.2 The Appellant started keeping exotic birds and animals
since the year 2004-05. The Appellant initially started with 3-4
exotic animals and birds and with the passage of time the Appellant
kept on adding exotic birds and animals and as on today the
Appellant has around 200 exotic pets and animals.
2.3 The Appellant had over last 15-16 years purchased 192
exotic species (birds/animals) domestically from Mr. Jayant Rathore
@ Golu (original Noticee No. 2) and Mr. Alvin Francis @ Monu
(original Noticee No. 3), both having their pet shops at Indore. The
Appellant had purchased the said animals and exotic birds on
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payment of cash, and no bills were issued by Mr. Rathore and Mr.
Francis. It is pertinent to mention here that Mr. Rathore and Mr.
Francis are involved in trade/exchange of exotic birds/animals in
Indore, for last many years.
2.4 Based on a purported intelligence that the animals and
exotic birds are of foreign origin, are smuggled into India, a search
was conducted by the officers of DRI, Indore, along with the Forest
Officials at the premises of the Appellant on 04.05.2019. A
Panchnama was drawn by the officers of the DRI at the premises of
the Appellant.
2.5 Vide seizure memo dated 04.05.2019, the officers of the
DRI seized 192 exotic species (birds and animals) under the
reasonable belief that they had been smuggled into India in
contravention of the Customs Act, 1962 (the Customs Act).
Subsequently, the said exotic birds and animals were handed over
to the zoo authorities under supardanama dated 04.05.2019.
2.6 During the course of the investigation, statement of
various persons including the appellant and the co-noticees &
others were recorded under Section 108 of the Act. The appellant
has consistently submitted that he had purchased the exotic birds
and animals domestically (within India).
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2.7 Subsequently, show cause notice dated 01.11.2019 was
issued by Joint Director, DRI, proposing to confiscate the seized
exotic animals and birds and to impose penalty upon the Appellant.
The Appellant, through his advocate filed reply dated 20.01.2020 to
the said show cause notice, praying for dropping of the proceedings
in view of detailed submissions made therein.
2.8 Vide Order-in-Original No. 11/JC/CUS/IND/2019 - 20
dated 19.02.2020, the Adjudicating Authority while ordering for
absolute confiscation of the birds/animals, imposed a penalty of Rs
5,00,000 on the appellant under Section 112(b) (i) of the Act.
2.9 Aggrieved, the appellant filed statutory appeal before
the Commissioner (Appeal), who vide the impugned Order, while
reducing the penalty on the appellant, has erroneously upheld the
absolute confiscation of the subject exotic birds and animals.
2.10 Pertinently, while passing the impugned Orders, the
authorities below erred in not dropping the proceedings, despite the
appellant relying on the Judgment of the Hon‟ble Allahabad High
Court (Lucknow Bench) in PIL Civil No. 22903 of 2019 titled
„Dinesh Chandra vs UOI & Ors‟ and that of the Hon‟ble Bombay
High Court (Nagpur Bench) in Criminal Writ Petition No. 807 of
2019 titled „Anil Naidu vs UOI & Ors‟, as well as the reply to
RTI Applications and the Orders passed by the Commissioner
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(Appeal), Bangalore and Joint Commissioner, Mumbai, dropping
cases against parties owning exotic animals, under similar
circumstances.
2.11. The appellant had started collecting and keeping the
exotic birds/ animals since the year 2004-05 and at present had
collected about 200 such pets during the last sixteen years. The
purchases were made in cash from time to time from two suppliers
who were having pet shops at Indore namely i) Shri Jayant Rathore
alias Golu having pet shop in the name and style of „pets Heaven‟
at Shivaji Market, Indore and one ii) Alvin Francis alias Monu having
its pet shop in the name and style of „Deepa Pet‟ located at Shivaji
Market at Indore. During investigation by the Revenue, the
aforementioned suppliers to the appellant were also interrogated
and their statements were recorded under Section 108 of the
Customs Act. The two suppliers confirmed having supplied variety
of exotic birds and animals to the appellant during the last several
years. They also confirmed that they have dealing in live birds,
cats, dogs, hen, ducks, bird food, fish food, aquarium and other
accessories. The aforementioned suppliers have also inter-alia
stated that they sourced the birds/ animals from various suppliers
located in India. The supplier also stated in their statement the
name of few persons from whom they have sourced, who were
located at Mumbai, Chennai, etc. It also came out in the statement
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of the suppliers located at Indore, that some of these exotic birds/
animals may have been smuggled into India by other persons.
The suppliers also stated that all the trade in the exotic animal is
normally carried out in cash and they have supplied the exotic
birds/ animals to the appellant on payment received in cash.
2.12. The statement of other members of the NGO - „Sanstha
Karuna Sagar‟ namely Sandeep Garg alias Sandeep Sagar was
recorded, wherein he also confirmed the welfare activities for birds/
animals by their organizations. He also stated that „Sanstha Karuna
Sagar‟ is a registered organization and the founders are Shri Mohan
Lal Garg alias Mohan Lal Sagar, the appellant, Pushpak Agarwal
alias Pushpak Sagar and Karan Sagar. The main object of the
Sanstha Karuna Sagar is the well being of birds and animals. They
look after many species of birds and animals. That, Sanstha Karuna
Sagar is keeping and taking care of birds and animals.
2.13. In his further statement recorded on 21.10.2019, the
appellant reiterated that he is unable to produce any documentary
evidence supporting acquisition or purchase of the birds /animals
from the said supplier namely Golu and Monu, as no such invoices
are issued by them. He further stated that he is not aware from
where the suppliers are sourcing the exotic birds and animals. He
also stated that some of the exotic birds and animals may be
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smuggled by other persons and also stated that such exotic birds
and animals are also bred in India.
2.14. The Department got the animals/ birds examined by the
Deputy Conservator of Forest, Tiger Strike Force, Indore, who
identified that the birds and animals and fish are non-native and
are of foreign origin. Revenue examined the data of import of
Wildlife for the last sixteen years (NIDB) and it appeared that some
of the seized species of wildlife have been imported into India
namely the Sun Conure, Love birds, blue and Yellow Macaw, African
Grey Perrot, Roseaete Cockatoo, Persian Cats and Guinea Pigs, etc.
It appeared to Revenue that the exotic birds/ animals seized from
the appellant have not been imported through legal route and
appeared to be smuggled by other persons.
2.15. The appellant in his affidavit before the Hon‟ble M.P.
High Court in Writ Petition No. 10407 of 2019 stated that all the
seized animals/ birds from him have been bred in India, but could
not produce any details of breeding in India. In their statements,
the said suppliers Golu and Monu had stated that the trade in
wildlife of exotic birds and animals is being done on Whatsapp
wherein the sellers and buyers both raised demand or query and
the transaction is completed without both knowing each other in
person. Also the payment in the trade is entirely made in cash.
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Customs Appeal No. 50170 of 2021
The Revenue on request obtained a certificate from the Deputy
Conservator of Forest, TSF, Indore certifying the native country
origin of the seized birds/ animals, dated 04.05.2019, a copy of
which is annexed at page 77 of the appeal paper book. The
Revenue on reference also received a mail from Secretary of Animal
Welfare Board of India, Ministry of Fisheries, animal Husbandry and
Dairying, Nodal agency for issuance of the license for animal
breeding, and according to the report of Animal Welfare Board of
India, no breeding and keeping permission/ licenses have been
provided in India of the seized Non-native birds / animals.
2.16. On enquiry by Revenue, the ADG Wildlife who is the
implementing agency for CITES (Convention of International Trade
in Endangered Species of Flora & Fauna) India, vide his letter dated
07.06.2019 (RUD-25) submitted that no CITES permit or
documents have ever been issued for the import of seized
exotic/animals and birds. It further appeared that fourteen out of
twenty two species of birds/ animals seized are specified in the
appendix of CITES.
2.17. It further appeared to Revenue that as per the import
policy, Condition 5 of Chapter 1- Import of Live Animals, that is, the
wild animals as defined under Wildlife Protection Act, 1972 is
permissible against the license to Zoos, Zoological parks, circus
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Customs Appeal No. 50170 of 2021
companies, private individuals, on the recommendation of Chief
Wild Life Warden of the State, subject to the provisions of the
Convention of International Trade in Endangered Species of Fauna
and Flora (CITES). Under Condition No. 6 it appeared that import
of Wild Animals (including their parts and products) as defined in
the Wildlife Protection Act, is prohibited, and those species which
are listed in CITES and are subject to provisions of CITES.
2.18. It further appeared to Revenue that the exotic pets
seized from the appellant are non-native, and in general they are
imported illegally and kept at unauthorized places, individual
homes, etc. These are brought through illegal routes without
proper license / documents. Curbing the illegal trade of wild exotic
pets is in the interest of animals, environment and the human
beings. Accordingly, the appellant was served a show cause notice
dated 01.11.2019 requiring him to show cause as to why the exotic
species of birds and animals seized under the seizure memo dated
04.05.2019, should not be absolutely confiscated under Section
111(b) and (d) of the Act, as the same appears to be in
contravention of Section 11 of the Customs Act read with Section
3 of Foreign Trade (Development & Regulation) Act, 1992, the
Import Policy and the CITES. Further penalty was proposed on the
appellant and the other two co-noticees namely Golu and Monu
under Section 112(b)(i) of the Act. The Order-in-original was
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passed on contest and the seized birds and animals were absolutely
confiscated and further penalty of Rs. 5 lakhs each was imposed on
the appellant and other two co-noticees under Section 112(b) (i) of
the Customs Act.
2.19. In the first appeal before the Commissioner (Appeals),
the Commissioner (Appeals) was pleased to uphold the seizure and
confiscation. Further, appreciating that no permission is required for
trading of exotic birds/animals within India under the Customs Act,
was pleased to reduce the penalty under Section 112(b)(i) to Rs. 3
lakhs observing that the seized animals/ birds were smuggled by
other person(s) in India and the appellant is a subsequent buyer in
the chain.
3. Being aggrieved, the appellant is in appeal before this Tribunal
on amongst the following grounds.
3.1. It is urged that admittedly in the facts and circumstances, it is
a case of town seizure of the birds /animals. In such case or facts,
the onus is on the Revenue to establish the allegation of smuggling
on the part of the appellant. The appellant have given cogent
statement and evidence and have explained that he has sourced
the seized birds/animals from the said Golu and Monu who were
made the co-noticee by the Revenue. The said Golu and Monu
located at Indore, have also confirmed that they have sourced from
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traders/ suppliers located in India and thereafter have supplied to
the appellant. Revenue have not led any evidence of smuggling on
the part of the appellant or the immediate suppliers to the
appellant, save and except suspicion raised.
3.2 While passing the impugned Orders, the authorities below
erred in appreciating the fact that-
(a) domestic trade in exotic animals and birds is not
prohibited;
(b) exotic birds/animals do not come under the purview of
Wild Life Protection Act, 1972, inasmuch as the same are
not included in the schedule. There is no provision under
the Wildlife (Protection) Act, 1972 to issue license or
permission for dealing in exotic birds. There are no Rules
and Regulations and procedures for keeping, breeding,
buying, selling and exhibiting exotic animals and birds
within country which have been bred in India;
(c) No permissions are required as per the Customs Act for
domestically keeping, breeding, buying, selling and
exhibiting exotic birds and animals;
(d) The exotic animals/birds are not notified under Section
123 of
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the Customs Act, 1962, therefore, there is no burden of
proof on the appellant regarding licit import;
(e) The instant was a case of town seizure under Section
110 of the Customs Act, 1962, which cannot be on mere
suspicion in absence of „reasons to believe‟;
3.3. Admittedly, the seized birds and animals are not notified
under Section 123 of the Customs Act. Only in case of goods
notified under Section 123 of the Act, the burden of proving that
the goods are not smuggled, in case where such seizure is made
from the possession of any person, it is on the person from whose
possession the goods were seized or on such other person who
claims to be the owner thereof. Hence, in the facts of the present
case, it is the onus of Revenue to bring on record cogent evidence
to support its allegation of smuggling.
3.4. It is further urged that Revenue has failed to bring any
cogent evidence on record and heavily relied on the statement of
third person(s) namely one Shri Salman Merchant owner of „Salman
Exotic Pet Store‟ at Mumbai, who inter-alia stated that he knows
Mr. Alvin Francis alias Monu at Indore and has been dealing in the
trade of exotic birds and animals with him. He also stated that he
has single transaction with Monu, wherein he gave him one
eclectous parrot and in the barter deal he received a green Maccaw.
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In addition he also received Rs. 10,000/- in cash. He further stated
that he is aware that the trade and transaction in exotic birds is
illegal and is also aware that the exotic birds are being imported
illegally in India.
3.5 Reliance is also placed on the statement of one Shri Imran
from whom the said Monu have been purchasing birds and animals
and had specifically stated that he purchased Marmoset monkey
from Imran, who is native of Mumbai, the deal was made through
Whatsapp in October, 2018. Shri Imran in his statement recorded
on 22.10.2019 inter alia stated that he is trading in exotic birds
through Facebook and Whatsapp group, on commission basis. He
has earlier visited Bangkok and other places and have sourced
exotic birds/ animals from outside India and thereafter these are
sold in local market. Save and except the few oral evidences which
have been disputed by the appellant and which are not reliable in
the eyes of law, Revenue has not brought any other cogent
evidence on record.
3.6. It is further urged that most of the exotic birds/ animals
seized are bred in captivity across the country. Since there is no
legal and statutory requirement governing the trade/ breeding
within India, it is not possible to get the census of exotic birds/
animals. It is further urged that as per the law in India, no
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Customs Appeal No. 50170 of 2021
registration, certificate, license, bills is required for the possession
of exotic birds/ animals. It is legal to possess and trade in exotic
birds and animals within India, which are of foreign origin. As a
buyer of such exotic animal and birds, the appellant has got no
means to find out the exact source of supply. That there is no
violation of the provisions of the Customs Act, 1962 for possession
of exotic birds/ animals. It is further urged that the jurisdiction of
the Customs Department is confined to the point of entry at the
time of import.
3.7. In para 23 of the show cause notice, it is alleged that
smuggling of marmoset monkeys is clearly established from the
statement of co-noticee No. 2 and 3 i.e. Golu and Monu, which is
further corroborated by the statement of Imran. Further, noticee
No. 2 Golu, in his statement has stated that he is aware that the
birds/animals are smuggled into India through sea route. It is
further urged that the Court below have erred & upheld the
allegation of smuggling on the suspicion that exotic pets are non-
native and in general these are imported illegally through illegal
route. It is further urged that the statement of the said person(s)
recorded under Section 108 of the Act is not reliable as the same
are unsubstantiated, and further have not been tested during the
adjudication proceedings by examination and cross-examination.
The oral evidences as aforementioned are not reliable and no other
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evidence is produced and thus impugned orders are fit to be set
aside and appeal allowed.
3.8. It is further urged that the exotic animals and birds in
question do not attract the provisions of Chapter IVA of the
Customs Act, which provides for detection of illegal imported goods
and prevention of the disposal thereof comprising of Sections 11A
to 11G. Admittedly, the Central Government has not notified the
exotic birds and animals in question under Section 11B of the
Customs Act.
3.9. The appellant has also relied on the ruling of Hon‟ble
Allahabad High Court, in PIL Civil No. 22903 of 2019 titled „Dinesh
Chandra vs. UOI & Ors‟ wherein a judgement dated 30.08.2019,
the Hon‟ble High court have inter-alia held as under:-
"30. Annexure - P9 clearly shows that CITES do not govern the
domestic trade, possession or breeding by any person including
aviaries, but only international Trade.
....
33. Thus, "Internal Trade" i.e., domestic trade within India, of 'exotic species' not in any Schedule of the Wildlife (Protection) Act, 1972 was never prohibited. Only 'External Trade' i.e., International Trade is governed by the conditions of Foreign Trade Policy.
....
36. Thus, domestic trade in exotic animals/exotic birds is not prohibited, and substantial exports of the 'exotic birds' is seen since several years in view of large scale breeding of 'exotic species' in India.
37. From the aforesaid, it is very clear that exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972. There is no provision under the Wildlife (Protection) Act, 1972 to 16 Customs Appeal No. 50170 of 2021 issue licence or permission for dealing in exotic birds. There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. No documents are specified and no permission are required as per Customs Act for keeping, breeding buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India.
Animals have been bred in captivity in India, Customs Act does not have role in it.
38. From plethora of material adduced by the petitioner, which are referred in preceding paragraphs, it is very clear that trade, possession, transportation and breeding of exotic animals/exotic birds within India is not governed and restricted by Wildlife (Protection) Act, 1972.
...
41. The exotic animals/birds are not notified under Section 123 of the Customs Act, 1962. Thus, there is no burden on the person who is in possession of exotic animals/birds, to prove his lawful acquisition or lawful importation into India under the provisions of Customs Act, 1962.
(emphasis supplied)
42. The 'exotic animals/birds' do not attract provisions of Chapter IVA- Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, as they are not notified under Section 11B. Thus, the person in possession of 'exotic animals/Birds is not bound to comply with requirements of Section 11C to 11F of the Customs Act, 1962 regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale thereof.
43. It is also true that in absence of the exotic animals/exotic birds being covered under Section 123 of the Customs Act, 1962, there is no statutory presumption that all exotic animals/birds in India are necessarily smuggled into India.
44. There is no merit in the prayer seeking direction to respondent DRI to conduct search and seizure operations with assistance of WCCB officials, at the shops, residences, breeding farms and all such places within India, where exotic animals/birds are kept or traded or being transported, whether for breeding or otherwise.
17Customs Appeal No. 50170 of 2021 'Seizure' has to be in accordance with Section 110 of the Customs Act, 1962. Existence of 'reasonable belief' that the concerned goods would be liable to confiscation, is a sine qua non for any valid seizure under Section 110. Any confiscation would be governed by the principles governing onus of proof in town seizures. Thus, confiscation or town seizure would not be authorized by law, when it would be merely on suspicion that an exotic bird in possession of a person within India may have been smuggled into India, on the basis such as - that person is not an importer, or is not having any proof of any valid importation under a License/ CITES permit or proof of duty payment or any reliable purchase voucher or proof of any other legal acquisition or on the strength of oral statements of any other co-accused. In such situation, mere 'acquisition', 'purchase', or 'possession" of the exotic animals or exotic birds, shall not invite penal consequences under the Customs Act, 1962. If at the entry/exit point, some consignment of import/export of exotic animals/birds is intercepted, upon establishing violation of the statutory provisions or CITES, the same would be liable for confiscation.
...
48. From the aforesaid, we are of the view that the Central Government has consciously kept the exotic animals/ exotic birds out of the purview of Wildlife (Protection) Act, 1972 by not including them in its Schedules, and has thus permitted their domestic trading, possession and captive breeding in India. Such legislative intent and decision of the Government can neither be interfered with in writ jurisdiction, nor can any direction be given to the Government in this regard to amend Wildlife (Protection) Act, 1972 or Customs Act, 1962. At the point of Import/Export, a Customs/DRI officer has jurisdiction to detect and prevent International Trade, i.e., import/ export of live animals and birds into or out of India, if found in violation of the provisions of Customs Act, 1962 read with the 'CITES' and Foreign Trade Policy. Thus, any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. There is no restriction on domestic trade, keeping, captive breeding, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development & Regulation) Act, 1962 or CITES. Any person in 18 Customs Appeal No. 50170 of 2021 possession of 'exotic animals/exotic birds' within India, is not bound to comply with the requirements of Section 11C to 11F of the Customs Act, 1962 regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale, as they are not notified under Section 11B. Similarly, mere 'acquisition', 'purchase', or 'possession' of the exotic animals or exotic birds within India, shall not invite any penal consequences under the Customs Act, 1962 or Wildlife (Protection) Act, 1972."
3.10. Another Judgment dated 30.07.2020 passed by the Hon‟ble Allahabad High Court, Lucknow Bench in PIL Civil No. 12032 of 2020 titled „Dinesh Chandra vs UOI & Ors‟ also supports the case of the appellant. Vide Order dated 13.10.2020, the Hon‟ble Supreme Court has dismissed the SLP filed there against.
I. Further, in Criminal Writ Petition No. 807 of 2019 titled „Anil Naidu vs UOI & Ors, the Hon'ble Bombay High Court-
Nagpur Bench has held as under:
"In the background of above submissions, we find that admittedly, import of exotic species of birds or animals is not permitted unless it is under valid license or payment of appropriate customs duty. So far as Wildlife Protection Act is concerned, admittedly, exotic species of birds or animals are not covered under the schedule thereunder and as such, we do not find that there can be any restriction to their domestic trade, possession or keep for breeding under the said Act. It is specifically noted that simply because exotic species are those birds or animals whose origin is not placed to Indian Wildlife by itself does not mean that unless the person who is in possession of same, said birds or animals are presumed to be smuggled into India, in view of the fact that provisions of the Foreign Trade Policy are applicable only in international foreign trade and not in relation to domestic possession or trading or breeding.
In view of the case of the petitioner as unfolded above, perusal of the provisions of Section 19 Customs Appeal No. 50170 of 2021 123 of the Customs Act, 1962 would reveal that it has no application to the exotic species of birds and animals and thus, owners or persons claiming ownership or are in possession of such exotic species are not required to establish that they are smuggled in India. Reference can also be usefully made to the provisions of Section 110 of the Customs Act, 1962, which enables the officers of respondent No.3 - Directorate of Revenue Intelligence to exercise its powers to seize any goods or documents only if, they have "reason to believe" that the said goods are liable for confiscation.
Admittedly, it is not the case of the petitioner that "M/s. SRK Exotic Birds, Nagpur" had imported any consignment of such species.
Documents filed in support of the petition, in fact, would establish that "M/s. SRK Exotic Birds, Nagpur" is not only engaged in keeping and trading of such birds, but are also into breeding of them irrespective of the fact that origin of such birds is not actually traced in India. As such, we do not find any manner whatsoever in which exotic species in possession of any such person can be ascertained as "smuggled into India" or "locally bred in-captivity" in the absence of any statutory ban imposed upon such in-captive breeding.
(emphasis supplied) In that view of the matter, we do not find any reason to issue any directions to initiate action as prayed for under the provisions of the Customs Act 1962 on any domestic keeper of the exotic species, as issuance of any such directions would be contrary to law, as it stands on today. However, we note that, if violation of any of the provisions of the Prevention of Cruelty to Animals Act, 1960 is found, in that event, appropriate authority under the said Act would definitely have jurisdiction to act upon, which would be limited under the provisions of the said Act. Considering the fact that there is no statutory presumption that all the exotic species are imported to India, nor there is a legal requirement which compels domestic keeper of 20 Customs Appeal No. 50170 of 2021 such species to produce any proof of importation or documents establishing his acquisition, no relief as sought for can be granted, as there is no prohibition, restriction or regulation to sale, purchase, possession or breeding of the exotic species within India under the provisions of the Customs Act, 1962. As such, issuing of directions as prayed, would be without jurisdiction. The provisions of Sections 123 and 110 of the Customs Act, 1962 are clear and unambiguous and, therefore, any seizure of such exotic species from one who is in possession and acquisition of same would be contrary to the provisions of the said Act."
3.11. Even, the Rajasthan High Court in Vivek Swami vs UOI & Ors, D.B. Civil Writ Petition No. 7491/2020 vide judgment dated 14.10.2020 has held as under:
"12. On the basis of the pleadings filed before this Court, following facts are not in dispute:-
....
(b) In the Wild Life (Protection) Act, 1972, there are various provisions to prevent and penalise any possession, trade, captive, breeding and transportation of all wild animals/birds listed in the schedules of the said Act. Clearly the term "exotic live species" is not covered under the Wild Life (Protection) Act, 1972.
(emphasis supplied)
(c) The Customs Act, 1962 as well as the Foreign Trade (Development and Regulation) Act, 1992 are applicable only, qua "International Trade of exotic live species" and India is signatory to the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). The CITES is an International Convention aimed and ensuring that international trade of wild animals, birds specified in various appendices available thereto, does not threaten their existence and their native habitats. The enforcement of CITES provisions at the point of import or export is by Custom/DRI Officers.
21Customs Appeal No. 50170 of 2021
(d) The enforcement of CITES provisions within India at any place other than the point of import/export is carried out by the State/Union Territories. The Wild Life Department is headed by the Chief Wildlife Warden under the Wild Life (Protection) Act, 1972, however it is clear therefrom that such officers have no jurisdiction in the matter of possession, breeding domestic trade/ transportation of "exotic live species", since the same is not covered by the Wild Life (Protection) Act, 1972.
(e) The term "exotic live species" has not been notified under Section 11(B) of the Customs Act, 1962. Thus, a person in possession of "exotic live species" is not required to comply with Section 11 (C) to Section 11(F) of the Customs Act, 1962 regarding intimation of the place of storage, precautions to be taken in acquiring and maintaining the accounts or sale thereof. Further, in absence of the term "exotic live species" being covered under Section 123 of the Customs Act, 1962. ....
20. It would be pertinent herein also to take note of the judgment of the Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416 and in A. Tajudeen Vs. Union of India (2015) 4 SCC 435, wherein their Lordships have noted various instances of compelled testimony by misuse of provisions such as Section 108 of the Customs Act, 1962, therefore, misuse cannot be ruled out. However, we are of the considered view, that any possibility of abuse of power conferred under Section 108 cannot be a ground to challenge the vires of Section 108 and one cannot deal with the same as manifestly arbitrary, unreasonable, unfair or unconstitutional. Section 108 of the Customs Act, 1962 is an important power conferred upon the Custom Officers for investigation under the offences punishable under the Act for recording voluntary statements.
21. We make it clear that we have only dealt with the use of Section 108 of the Customs Act, 1962 in the context of aforesaid Voluntary Disclosure Scheme issued by the Government of India under the Ministry 22 Customs Appeal No. 50170 of 2021 of Environment, Forest & Climate Change vide its notification dated 11.06.2020.
(emphasis supplied) The order of Hon‟ble Rajasthan High Court has been confirmed by the Hon‟ble Supreme Court as it has found no ground to interfere with the order of the High Court and dismissed the SLP by its order dated 14.12.2020 in SLP (C) No. 12879 of 2020 in the case of Vivek Swami vs. UOI & Ors.
4. Opposing the appeal, learned Authorised Representative appearing for the Revenue Shri Yashvir Singh relies on the impugned order. He further states that there is no record available of the exotic birds/ animals having been breed in India. He further urges that the suppliers of the appellant who are co-noticees, have stated that they have sourced from persons located in India but are aware that such persons are also engaged in smuggling. It is further urged that Revenue have examined the import data from NIDB for the period 2004 to 2018 and found that some of the seized species of exotic birds/ animals were not imported during this period, during which the appellant claims to have made purchases within India. It is further urged that the seized exotic birds/ animals are of foreign origin as certified by the Deputy Conservator of Forest, and the certificate granted is annexed in the appeal paper book. Further, it has come out in the investigation that the appellant could not produce any documentary evidence of 23 Customs Appeal No. 50170 of 2021 the illicit purchase, hence the allegation of the Revenue of the same being smuggled is credible. Accordingly, he prays for dismissing the appeal.
5. Having considered the rival contentions, I find that it is a case of town seizure and not interception at the point of entry in India. Admittedly, the appellant have purchased the exotic birds/ animals in domestic area within India, which has been corroborated by the two suppliers based at Indore namely Golu and Monu who are also the co-noticees. Further, there is no evidence on record that the said Golu and Monu have smuggled the exotic birds/animals in India. Further, I find that the Revenue has failed to establish the allegation of smuggling with any cogent evidence, either by the appellant or the other two co-noticees. The burden of proof lies on Revenue to support its allegation of smuggling.
6. Further, the Hon‟ble Allahabad High Court in the case of Dinesh Chandra (supra) have held that CITES do not govern the domestic trade, possession or breeding by any person including aviaries, but only international trade. It was further observed that „internal trade‟ i.e. domestic trade within India, of „exotic species‟ is not found in any schedule of the Wildlife (Protection) Act, 1972 and was never prohibited. Only „external trade‟ i.e. international trade is governed by the conditions of Foreign Trade Policy. The Hon‟ble 24 Customs Appeal No. 50170 of 2021 Allahabad High Court further held that domestic trade in exotic birds/ animals is not prohibited and substantial export of the exotic birds from India is seen since several years in view of large scale breeding of exotic species in India. It is further held that no documents are specified and no permission is required as per Customs Act for keeping, breeding, buying, selling and exhibiting of such exotic birds/ animals within the country. It is further held that the exotic birds/animals are not notified under Section 123 of the Customs Act. Thus, there is no presumption of smuggling on the person who is in possession of such exotic birds/ animals, also do not attract the provisions of Chapter IV-A of the Customs Act. It was also held that mere acquisition, purchase or possession of exotic birds/animals does not violate provisions under the Customs Act. It is only at the entry point, at the time of import, any consignment of exotic birds/ animals intercepted, upon establishing violation of the statutory provisions or CITES, the same would be liable for confiscation. It was held that the Central Government has consciously kept the exotic birds /animals out of the purview of Wildlife (Protection) Act, 1972 by not including them in its schedules, and has thus ipso facto permitted their domestic trading, possession and captive breeding.
25Customs Appeal No. 50170 of 2021 6.1. I find that similar view was taken by the Hon‟ble Bombay High Court in Anil Naidu vs. UOI & Ors. by its judgment dated 11.09.2019 in Criminal Writ Petition No. 807 of 2019.
6.2. I find that similar view has also been taken by the Hon‟ble Rajasthan High Court in its judgment dated 14.10.2020 in Writ Petition No. 7491 of 2020 in the case of Vivek Swami vs. UOI & Ors. wherein, in the Writ Petition the prayer was to direct the „Central Board of Indirect Taxes‟ to issue suitable circular/ instructions to enable the citizens in possession of exotic species to make declaration under the „voluntary disclosure scheme‟ without any fear under the Customs Act, 1962, and further direction on the Officers of CBIC in the nature of „writ of prohibition‟ for seeking any information relating to the acquisition of birds/ animals in his possession, which the petitioner is contemplating to declare under the voluntary disclosure scheme issued by the Central Government. The Rajasthan High court relying on the aforementioned ruling of the Allahabad High Court in Dinesh Chandra (supra) have observed that the Customs Act and the Foreign Trade (Development and Regulation) Act, are applicable only qua international trade of exotic life species. It was also observed that the Wildlife Department headed by the. Chief Wildlife Warden have got no jurisdiction in the matter of possession, 26 Customs Appeal No. 50170 of 2021 breeding, domestic trade and transportation of exotic life specifies, since the same is not covered by the Wildlife Protection Act, 1972.
7. In view of my aforementioned findings and the ruling of the Hon‟ble High Courts, I allow this appeal and set aside the impugned order. The appellant will be entitled to consequential benefits including return of the seized exotic birds/ animals forthwith. The respondent is directed to return the seized birds/ animals etc. within a period of seven (7) days from the date of receipt or service of copy of this order.
(Operative part of the order pronounced in open Court).
(Anil Choudhary) Member (Judicial) Pant