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TMI Blog2016 (12) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. 2. Sh. Saurabh Bagaria (Advocate) and Sh. Partho Banerjee (Advocate) appeared on behalf of the appellant Sh. Bagaria argued that Appellant received a consignment of 'Imitation Ostrich Bird Feathers' from the supplier through courier Agency 'TNT India Private Ltd' and the description in the invoice was shown as Free Trade sample for work purpose Ostrich 'Bird Feathers' and all the Customs procedures were executed by the supplier to whom the finished goods were consigned as per shipping Bill No. 4217966 dated 22/6/2011 where the description was given as 'Silk Fabrics' containing 85% or more by weigh of silk with embroidery ( beads and feathers). Learned Advocate made the bench go through the statements of Sh. R. P. Sharma (AR) and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries specified in CITES. Learned AR strongly defended the orders passed by the lower authorities. 4. Heard both sides & perused the case records. The issues involved in the present proceedings are:- (i) Whether feathers used in the making of silk fabrics, being exported by the appellant, are prohibited Ostrich feathers as per CITES? (ii) Whether appellant is liable for penalty under Sec 114 (i) & Sec 114 AA of the Customs Act 1962. 5. So for as point at Para 4 (i) above is concerned, it is observed that Ostrich feathers were receipted by the appellant from a Madrid (Spain) party M/s Charo Azcona through a courier Agency Copy of invoice dt 17/5/2011 described the goods as 'Imitation Ostrich feather.' As per Appendices II, interalia, fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed feathers processed through courier Agency was never got cleared by the Appellant. The documents received by the appellant from the supplier of imported goods indicated the same to be imitation ostrich bird feathers. There is no evidence on record that appellant had knowledge of prohibited nature of imported feathers. Appellant has not dealt with the feathers in the act of import. Ostrich feathers are not a prohibited item under wildlife (Protection) Act 1972, 6.1. Hon'ble Calcutta High Court in the case of Gopal Saha Vs UOI (Supra) held as follows :- "14. There is a distinction between Section 111 and Section 112 of the Act. The former provides for confiscation of improperly imported goods and the latter prescribes the penalty for impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1.1. In the above case law the petitioners were the mastermind & kingpin of gold smuggling' operation & the 'principle accomplice'. Inspite of the above Hon'ble High Court has held that penalties are not imposable & were set aside. It is also held in the above case law that confiscation provisions should be liberally interpreted in favour of the State but provision providing for punishment should be strictly construed. In the present case there is no evidence on record that appellant was aware of the contraband nature of ostrich feathers received by them through a courier Agency. 6.2. In view of the above penalties imposed upon the appellant under Sec 114 (i) & Sec 114 AA of the Customs Act 1962 are not justified and are set aside. 7. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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