Home Case Index All Cases Customs Customs + AT Customs - 2021 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 523 - AT - CustomsAbsolute Confiscation - subject exotic birds and animals owned by the appellant - town seizure of the birds /animals - ‘prohibited’ and ‘smuggled’ or not - burden to prove the allegation of smuggling - HELD 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. The Hon’ble Allahabad High Court in the case of DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT] 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 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. The Wildlife Department headed by the. Chief Wildlife Warden have got no jurisdiction in the matter of possession, breeding, domestic trade and transportation of exotic life specifies, since the same is not covered by the Wildlife Protection Act, 1972. 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 - appeal allowed - decided in favor of appellant.
|