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2021 (12) TMI 493
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....g from Merapani to Golaghat. The three accused persons/petitioners herein, upon interrogation, stated that the exotic animals and birds so recovered were collected from Imphal, Manipur and were being taken to Chennai. On 15.03.2021, the Officer-In-Charge, Ghiladhari Police Station, Golaghat handed over the detected items, i.e., the recovered animals and birds and the vehicle along with the accused persons/petitioners to the Range Forest Officer, Jamuguri Range, Golaghat who in turn informed that the recovered animals and birds being exotic were beyond the scope of the Wildlife Protection Act, 1972 and therefore, requested the Customs Preventive Force Numaligarh to proceed against the petitioners and seized the vehicle under the Customs Act, 1962. Thereafter, the accused persons/petitioners herein were arrested on the same day, i.e. on 15.03.2021 in connection with the aforesaid case and the vehicle along with the recovered articles was seized. The rescued animals being in live condition and there being no rescue cum rehabilitation centre were transferred to the Assam State Zoo cum Botanical Garden Authority, Guwahati on the same day for their proper health care, treatment as well a....
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....ourt that for any goods to be seized as prohibited or dutiable goods, the same must be notified in terms of Section 123(2) of the Customs Act, 1962. For better understanding and convenience, Section 123 (2) of the Customs Act, 1962 is quoted below: "123. Burden of proof in certain cases- (2) This Section shall apply to gold and manufactures thereof, watches and any other class of goods which the Central Government may be notification in the Official Gazette, specify" [10] Mr. Saikia has further submitted that for detection of illegally imported goods and prevention of disposal thereof, the Customs Act, 1962 under Chapter IV A provides under Section 11A(d), that "notified goods" means goods specified in the notification under Section 11B; Section 11B provides for Power of Central Government to notify goods; Section 11C provides for Persons possessing notified goods to intimate place of storage, etc; Section 11D provides for precautions to be taken by persons acquiring notified goods, Section 11E provides for persons possessing notified goods to maintain accounts, etc. [11] Mr. Saikia, learned senior counsel for the petitioners, on the basis of above legal as ....
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...., it is clearly noticed that the seized live exotic animals and birds which are not included in any of the Schedule under the Wild Life (Protection) Act, 1972 are not within the purview of the Foreign Trade (Development and Regulation) Act, 1992 and the Schedule 1-Import Policy, referred to above, as only the animals and birds which find a place in the Schedule under the Wild Life (Protection) Act, 1972 fall within the ambit of the Act of 1992 as indicated in the remarks column in Serial Nos. 01061100 and 01063200. On the other hand, the Policy Condition No. 6 mentions about those species which are listed in CITES are subject to provisions of CITES. It deserves a mention here and found to be an undisputed position that the recommendations under CITES has not been implemented in India till date. As such, as on date, the provisions of CITES are not applicable in India. Such being the legal position, the Schedule 1 of the Import Policy under the Foreign Trade (Development and Regulation) Act, 1992 is not of any help to the respondent to bring the birds and animals seized in the instant case within the ambit of 'prohibited goods' under Section 2(33) of the Customs Act. Accordingl....
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.... 9. Further, Section 2(33) of the Act defines "prohibited goods" as under: - "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with." 10. From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import....
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....he learned Senior counsel for the petitioners are quoted herein below:- ".........we do not find that there can be any restriction to the domestic trade, possession or keep for breeding of exotic species.........." ".........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.........." "...........no prohibitions, restriction or regulation to sale, purchase, possession or breeding of the exotic species within India under the provisions of the Customs Act, 1962..........." B. Dinesh Chandra -vs- Union of India, in PIL Civil No. 22903/2019 by the High Court of Judicature at Allahabad vide order dated 30.08.2019. Learned Senior counsel for the petitioners has referred to para 48 thereof which is quoted herein below:- "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....
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....ervice Tax Appellate Tribunal, South Zonal Bench, Chennai vide order dated 05.03.2004. Learned Senior counsel for the petitioners has referred to para 8 and 9 thereof which are quoted herein below:- "8 I have considered the submissions made by both the sides and perused case records. I find that in the present case, the goods involved are non-notified goods under Section 123 of the Customs Act and are freely importable under Open General Licence and are freely available in the market. The confiscation of the goods has been ordered on the ground that the goods are of foreign origin and are in trade quantities and that the goods are not covered by any bills for their licit import into the country. I observe that merely because the goods are in trade quantities and there are foreign markings on the goods, that by itself cannot lead to an inference that the goods have been smuggled into the country. The appellants in their initial statements have stated that they are doing business in such goods and the goods have been purchased by them for business purposes and that they are not the importers. There is nothing extra ordinary that people doing business in buying and selling of....
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.... not maintain proper account to show the purchase of the articles, or that the purchase vouchers produced were found to be forged cannot necessarily lead to the conclusion that the articles were smuggled or were imported contrary to any prohibition or restriction. The evidence to justify an inference of smuggling should be one which is relevant for providing the unauthorised importation of the goods and not the unauthorised possession of the goods. 9. Further the case law cited by the learned Counsel for the appellants in the matter of Sadbhavana v. CC, Indore reported in 2003 (158) E.L.T. 652 wherein it has been held that failure to produce document regarding legal import/possession of foreign origin goods, the burden to prove the smuggled character of the goods lies on the department, squarely applies to the facts of the present case. In the instant case as noted above, the goods are non notified goods, and are freely available in the open market for any one to purchase or do business." E. Sultan Dharani -vs- Commissioner of Cus.(P), Mumbai , reported in 2007 SCC Online CESTAT 2918: (2007) 220 ELT 820 by Customs Excise and Service Tax Appellate Tribunal, West Zonal Be....
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....of power by DRI. It is evident that even such belated seizure is without any firm reasonable belief and, therefore, is illegal." F. 1992 Supp (1) SCC 335 (State of Haryana -vs- Bhajan Lal). Learned Senior counsel for the petitioners has referred to para 102 thereof which is quoted herein below:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even ....