TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 1329
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....nerable exotic live species which are not mentioned in the Appendices to the CITES; (c) Pass any other or further order/s as this Hon‟ble Court may deem fit and proper." 2. Petitioner No.1 is an establishment involved in maintenance of rescue shelters for animals of Indian origin as well as exotic species. It was registered at Ahmedabad on 9th October, 2019 under the Bombay Public Trusts Act, 1950 vide registration No.E/22724/Ahmedabad. It was established by a group of like minded persons who have been involved in the promotion of animal welfare and wildlife protection activities since several years with an objective of protecting, improving and serving the natural environment including wildlife, and promoting compassion towards animals and welfare of animals. 3. Petitioner No.2 is a wildlife enthusiast and was conferred with the Amrita Devi Bishnoi Wild Life Protection National Award by the Government of India in 2008 and he has served as a member in various boards and committees as stated in the memo of the writ petition. 4. It is submitted by the learned counsel for the petitioners that an Advisory has been issued by the respondent No.1/Ministry of Environment, Forest....
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.... those listed in Wild Life (Protection) Act, 1972) considering India's commitment to the CITES Convention. It may be recalled that there is already a very high degree of protection to threatened species in the country that are notified in various schedules of Wild Life (Protection) Act, 1972. However, for those critically endangered, endangered, vulnerable and threatened species that are found elsewhere in the world and are listed in the Appendices I, II and II of CITES, no systematic provision with regard to safe upkeep, welfare, monitoring or futuristic conservation-development planning has been available in the country. The suggestion of the Petitioner to enlarge the scope of the Advisory to all Exotic live species is acknowledged. It is reiterated, however, that the present objective of the Advisory on Exotic Species is to provide additional focus on global efforts to conservation of such species that are threatened or that may be subject to over exploitation to affect survival or that needs protection in any CITES Party country. As such the provisions of CITES, to which India is a Party, and which provides a very comprehensive global platform, have been presently taken int....
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.... development, and legal compliance of CITES, immensely. The suggestion of the Petitioner to enlarge the scope of the Advisory to all Exotic Live Species has already been responded to in previous paragraphs and shall be considered by the answering Respondent." (emphasis supplied) 9. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that India is a signatory to "Convention on International Trade in Endangered Species on Wild Fauna and Flora" (CITES). The object to be achieved by the aforesaid International Convention reads as under: "The Contracting States, Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come; Conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view; Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora; Recognizing, in addition, that international co-operation is essential for the protection of certain species of wi....
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....eclarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months of the date of issue of the advisory. For any declaration made after 6 months, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations. Holders of such species have to visit the website (www.parivesh.nic.in) and fill up the requisite forms in order to complete the stock registration process." (emphasis supplied) 12. The Advisory issued by the Ministry of Environment, Forest and Climate Change (Wild Life Division), Government of India with following background: "ADVISORY FOR DEALING WITH IMPORT OF EXOTIC LIVE SPECIES IN INDIA AND DECLARATION OF STOCK Background Exotic live species are animal or plant species moved from their original range (location) to a new one. These species are introduced to a new location most often by people. Considering the significance of import and export of exotic live species, this Ministry is issuing an advisory to streamline the process for import and possession of exotic live species in India. The following are proposed: * Developing an i....
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.... file their voluntary disclosure declaration within six months from the date of issuance of the Advisory. Immunity is not provided to the declarers opting to disclose the stock once the period of six months is over from the date of issuance of the Advisory. The immunity contained in Clause I (b) of the Advisory as stated hereinabove for the declarers is not further clarified in the said Advisory. The petitioner is seeking directions so far as immunity is concerned, under the Voluntary Disclosure Scheme that there shall be no investigation into the acquisition or possession of exotic species once the declarer voluntarily discloses as per the Scheme. As per petitioners, once the declaration is made within a period of six months, the declarer should not be subject to any civil or criminal inquiry under any other law for the time being in force, especially about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting such exotic animals. 16. We are in full agreement with the arguments canvassed by the petitioner. Once the immunity is granted under the Voluntary Disclosure Scheme, the respondent cannot investigate about the ownership, ....
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.... that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Penal Code, 1860 does not arise. We have read the charge-sheet as a whole. There is no allegation in the first information report or the charge-sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appella....
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....fter settlement of the liability. More so, when in view of Section 90 sub-section (4) of the Scheme the declarant is obliged to withdraw an appeal or proceedings regarding tax liability pending before the High Court or the Supreme Court, which had also been done in the case in hand. That is to say that on one hand the declarant is not permitted to pursue the remedy, regarding tax liability, which is already pending before the courts of law, as they are either deemed to be withdrawn by operation of law or they have to be withdrawn by a positive act of the party and yet prosecute such persons for their conviction as well. The declarant could not be dragged and chased in criminal proceedings after closing the other opening making it a dead end. It is highly unreasonable and arbitrary to do so and initiation and continuance of such proceedings lack bona fides." (emphasis supplied) 18. Thus, Voluntary Disclosure Scheme invites the declarers, in public interest, by conferring immunity to them for a limited period (here six months) to promote the voluntary disclosure. Once such voluntary disclosure is made within the time limit prescribed, no inquiry or action can be initiated by the re....
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.... 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. 47. It is well settled that the Court must be extremely careful to see that under the guise of redressing public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. Thus, it cannot direct the government to initiate legislation or interfere in the matters of governmental policy, except in cases of violation of fundamental rights. 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 ....
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....ns of Customs Act 1962 read with the 'CITES' and Foreign Trade Policy, and any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. 11. There is no change in the legal position stated in the said judgment dated 30.08.2019 even in respect of domestic trading, possession, transportation and captive breeding of exotic species within India, at least for a period of six months from the date of introduction of the present "voluntary disclosure scheme" as the Clause (b) of Part I of this voluntary disclosure scheme also provides that -- "the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months of the date of issue of the advisory." 12. After expiry of this six months' window, the Scheme clearly states that-" ...For any declaration made after 6 months of the date of issue of this advisory, the declarer shall be required to comply with the documentation requ....
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....respondent after the declarer has voluntarily disclosed the stock of live exotic species, especially about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting of the exotic species etc. 22. So far as widening the scope of Advisory for the inclusion of other exotic live species other than which are enumerated in Appendices I, II and III of the CITES - International Convention, it appears that in the aforesaid International Convention Article XIV reads as under: "Effect on domestic legislation and international conventions 1. The provisions of the present Convention shall in no way affect the right of Parties to adopt: (a) stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or (b) domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III. 2. The provisions of the present Convention shall in no way affect the provisions of any domestic measures or the obligations of Parties deriving from any treaty, convent....
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....ioner to enlarge the scope of the Advisory to all exotic live species is acknowledged because there are still other vulnerable exotic live species which are not mentioned in the Appendices I, II and III to the International Convention - CITES. Thus, the further Advisory can always be issued by the respondent keeping in mind the provisions of Article 48A and to be read with Article 51A(g) of the Constitution of India which are about protection and improvement of the environment and to safeguard the forest and wild life of the country. This obligation of the State extends to protecting exotic live species, beyond the Appendix to the CITES - International Convention. It has been held by the Hon'ble Supreme Court in Indian Handicrafts Emporium & Ors. v. Union of India & Ors. reported in (2003) 7 SCC 589 in para Nos.57, 58, 59 and 62 as under: "57. India being a sovereign country is not obligated to make law only in terms of CITES; it may impose stricter restrictions having regard to local needs. 58. In John Vallamattom v. Union of India [(2003) 6 SCC 611 : JT (2003) 6 SC 37] this Court speaking through the Hon'ble Chief Justice of India held: (SCC p. 624, para 30) "Furthermor....