9911796707
TMI Blog2021 (1) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the suppliers located at Indore, that some of these exotic birds/ animals may have been smuggled into Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences 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 sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 whatsoe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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, 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 exot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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