2022 (5) TMI 1053 - HC - Customs

Court sets aside order seizing exotic bird, citing Voluntary Disclosure Scheme compliance and lack of legal basis.

Sukanta Mallick Versus Union of India and Others

The court allowed the appeal, setting aside the impugned order and quashing the proceeding initiated by the respondent regarding the seizure of the exotic ... Seizure of exotic animal - Live Exotic Bird Macaw - summoning the appellant under Section 108 of the Customs Act, 1962 - evidence of production of legal documents - HELD THAT:- In the instant case the respondent no. 3 had seized Exotic Bird of the appellant but admittedly the Central Government has not notified the exotic bird and animals in question under section 11B of the Customs Act or in any of the Schedule of the Wild Life (Protection) Act, 1972 and thus mere surmises or merely on the basis of the statements recorded by the Custom or Wildlife authorities would be contrary to the provisions of the Customs Act, 1962 or even Wild Life Act. The appellant, by virtue of the Advisory had declared the stock of Exotic Live Spices on 15.11.2020 i.e. within six months from the issuance of the Advisory and thus in view of the judgments in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT] the seizure made by the respondent no. 3 on 24.12.2021 and subsequent summon issued to the appellant by the respondent no. 3 is bad in law and illegal. It certainly amounts to abuse of the process of law. Appeal allowed - decided in favor of appellant. Issues Involved:1. Delay in filing the appeal.2. Legality of the seizure of the exotic bird.3. Compliance with the Voluntary Disclosure Scheme.4. Authority of Customs Officers under the Customs Act, 1962.5. Immunity under the Voluntary Disclosure Scheme.6. Applicability of judgments from other High Courts and the Supreme Court.Issue-wise Detailed Analysis:1. Delay in Filing the Appeal:The appellant filed CAN 1 of 2022 to condone a 13-day delay in filing the appeal. The court accepted the explanation provided, considering it a bona fide reason, and allowed the delay to be condoned.2. Legality of the Seizure of the Exotic Bird:The appellant challenged the seizure of a Live Exotic Bird Macaw by the Customs Authority under Seizure Case No. 39/IMP/CL/Macaw/CUS/BCD/DPU/2021-2022 dated 21.12.2021. The bird was seized at the Air Cargo Complex, N.S.C.B.I. Airport, Kolkata. The court found that the seizure and subsequent summons issued under Sections 108 and 110 of the Customs Act, 1962, were not justified as the exotic bird was not notified under Section 11B of the Customs Act or any Schedule of the Wild Life (Protection) Act, 1972.3. Compliance with the Voluntary Disclosure Scheme:The appellant had declared the stock of Exotic Live Species, including the Green Wing Macaw, within the stipulated six-month period from the issuance of the advisory by the Ministry of Environment, Forest and Climate Change (MOEFCC). The court noted that the appellant had complied with the provisions of the advisory, including the declaration of newly born birds and the intended transfer of one bird.4. Authority of Customs Officers under the Customs Act, 1962:The court examined whether the Customs Officers had the authority to seize the exotic bird and demand financial records. It was concluded that the Customs Act, 1962, did not cover exotic live birds under Sections 123 and 11, and thus, the seizure was unlawful. The court referenced multiple judgments, including those from the Allahabad High Court and the Delhi High Court, which supported the view that exotic birds do not fall under the purview of the Customs Act for domestic trading, possession, and transportation.5. Immunity under the Voluntary Disclosure Scheme:The court emphasized that the Voluntary Disclosure Scheme provided immunity to declarants who disclosed their stock within the six-month window. The appellant, having declared the stock within this period, was entitled to immunity from civil or criminal inquiries regarding the ownership, possession, trade, transportation, breeding, and other activities related to the exotic birds.6. Applicability of Judgments from Other High Courts and the Supreme Court:The court relied on several judgments to support its decision. Notably, it referenced the Allahabad High Court's judgment in Dinesh Chandra vs. Union of India, which clarified that exotic birds do not come under the Wild Life (Protection) Act, 1972, and the Customs Act does not apply to them for domestic activities. The Delhi High Court's judgment in Khodiyar Animal Welfare Trust vs. Ministry of Environment Forest and Climate Change reinforced the immunity provided under the Voluntary Disclosure Scheme. The court also considered the Bombay High Court's and Meghalaya High Court's judgments, which aligned with the view that exotic species are not subject to seizure under the Customs Act.Conclusion:The court allowed the appeal, set aside the impugned order of the Learned Single Judge in WPA No. 1554 of 2022 dated 16th March 2022, and quashed the proceeding initiated by the respondent under Seizure Case No. 39/IMP/CL/Macaw/CUS/BCD/DPU/2021-22 dated 24.12.2021. The appellant's compliance with the Voluntary Disclosure Scheme and the lack of legal basis for the seizure were pivotal in the court's decision.