2003 (4) TMI 124 - HC - Customs

Court quashes order directing Customs to adjudicate notice, instructs no withholding based on CITES permit, petitioner compliance acknowledged.

ZAVARAY S. POONAWALLA Versus UNION OF INDIA

The court quashed and set aside the order of Respondent No. 4, directing Customs Authorities to adjudicate the show cause notice under Section 124 of the ... Import Issues Involved:1. Violation of Export-Import Policy of the Government of India.2. Violation of the provisions of the Wild Life (Protection) Act, 1972.3. Violation of CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora).Detailed Analysis:Violation of Export-Import Policy:The Respondent No. 4's rejection of the petitioner's application on the grounds of violating the Export-Import Policy is without merit. Firstly, Respondent No. 4 is not an authority constituted under the Export-Import Policy. Secondly, the appropriate authority under the Export-Import Policy has granted the requisite license to the petitioner. The Respondent No. 4 does not have the authority to enforce the provisions of the Export-Import Policy, and thus, it is not within their jurisdiction to reject the application on these grounds. The Licensing Authority has already held that the taxidermy item of Panthera Pardus can be imported under the Export-Import Policy and granted a license accordingly. Therefore, the rejection on this ground is unsustainable.Violation of the Wild Life (Protection) Act, 1972:The rejection of the application on the grounds of violating the Wild Life (Protection) Act, 1972, is also without merit. Respondent No. 4 is not an authority constituted under the Wild Life (Protection) Act, 1972. In this case, specific approval has been granted by the authorities under the Wild Life (Protection) Act, 1972, namely the Deputy Inspector General (Wild Life) of the Union Ministry of Environment and Forests, New Delhi, and the Chief Conservator of Forest, Maharashtra State, Nagpur. Therefore, it is not within the jurisdiction of Respondent No. 4 to hold that there is a violation of the Wild Life (Protection) Act, 1972, and the rejection on this ground cannot be sustained.Violation of CITES:The application for approval under CITES was made by the petitioner on 27th April 2002, well before the import in September 2002. Respondent No. 4 had informed the petitioner by a letter dated 16th May 2002 that unless clearance is obtained from the Director General of Foreign Trade and the authorities under the Wild Life (Protection) Act, 1972, permission under CITES cannot be granted. After obtaining the necessary permissions, the petitioner approached Respondent No. 4, who took no action. The goods in question arrived in the meantime. Thus, the petitioner had complied with all the requirements and applied for an advance permit from the CITES authority in India. The rejection on the grounds of not obtaining prior permission is unsustainable as the application was made well in advance, and all requirements were met before the import. The only jurisdiction of the CITES Management authority is to ensure that the imported specimen is not used for commercial purposes, which the petitioner has assured. The rejection on the grounds of violation of CITES, Export-Import Policy, and Wild Life (Protection) Act, 1972, is therefore unsustainable.Conclusion:The petitioner has complied with all requirements under CITES, the Export-Import Policy, and the Wild Life (Protection) Act, 1972. The order of Respondent No. 4 dated 17th January 2003 is quashed and set aside. The Customs Authorities are directed to adjudicate the show cause notice under Section 124 of the Customs Act, 1962, on its own merits and in accordance with the law within four weeks. The customs authorities shall not withhold clearance of the items on the grounds that a permit under CITES is not obtained by the petitioner. The petition is disposed of with no order as to costs.