TaxTMI 
TaxTMI 
2026 (7) TMI 269
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....penalty imposed upon him. The remaining three appeals have been filed by the Revenue challenging different portions of the impugned order, namely: (i) the direction for release of 19 birds seized from the residential premises of Shri Domnic Jacob Sequeira at Pune together with the reduction of penalty imposed upon him; (ii) setting aside of the penalty imposed upon Shri Gouse Gaffar Shaikh; and (iii) the direction for release of the Mahindra Scorpio vehicle bearing Registration No. MH-42-AH-5496 owned by Shri Balasaheb Appasaheb Dhumal. 2. The dispute arises out of an investigation conducted by officers of the Directorate of Revenue Intelligence (DRI) into the alleged transportation and possession of certain live birds and mammals stated by the Department to be exotic wildlife of foreign origin, allegedly brought into India in contravention of the provisions of the Customs Act, 1962 read with the Wildlife (Protection) Act, 1972 and the Foreign Trade Policy. The proceedings ultimately culminated in confiscation of the seized birds and mammals and imposition of penalties upon certain persons alleged to be connected with the transportation and possession ....
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....nder the Customs Act, 1962. Accordingly, the entire consignment consisting of 35 numbers of live birds and animals was seized under the reasonable belief of being liable to confiscation. The details of the wildlife found in the 5 (five) cages seized are as follows: - Cage No. Species Recovered Quantity Cage No. 1 Black & White Ruffed Lemur (Live Exotic Mammal) 2 Nos. Marmoset (Live Exotic Mammal) 1 No. Bengal Cat (Live Exotic Mammal) 1 No. Bird of Paradise (Live Exotic Bird) 2 Nos. Cage No. 2 Blue Gold Macaw (Live Exotic Bird) 1 No. Silver Macaw (Live Exotic Bird) 1 No. Cage No. 3 Knobbed Hornbill (Live Exotic Bird) 1 No. Cage No. 4 Yellow-tailed Black Cockatoo (Live Exotic Bird) 1 No. Cassowary Chick (Live Exotic Bird) 4 Nos. Cage No. 5 White (Live Exotic Bird) Cockatoo 4 Nos. Eclectus Parrot (Male) (Live Exotic Bird) 2 Nos. Eclectus Parrot (Female) (Live Exotic Bird) 3 Nos. Grey Parrot (Live Ex....
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....g, H. No. 256, Aizawl, Mizoram; and (ii) T-33 College Veng, Tlangnuam, Near ITI Road, Aizawl. 6.1. On the basis of the above statement, further investigation was conducted at the premises at T-33 College Veng, Tlangnuam, Near ITI Road, Aizawl, whereafter the supplier was found to be one Lalfingkima Sailo, who had allegedly played a significant role in facilitating the transportation of the live exotic birds and animals after their alleged entry into India through the Indo-Myanmar border. It was alleged that Shri Sailo, in connivance with Ms. Sukanda and another person named Racer, arranged logistical support for collection of the live birds and mammals at Melbuk and their onward transportation to Kolkata through Lengpui Airport, Aizawl. The Department further relied upon his written submissions made before the officers of DRI, Aizawl and DRI, Kolkata, as well as the statement of Dr. Vanlalchhandama, to allege that Shri Sailo had misused the doctor's letterhead and seal for preparing forged veterinary fitness certificates required for booking the consignments through air cargo. It was further alleged that such certificates had been prepared at the instance of Shri Do....
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....queira at Pune, the following live birds, alleged to be exotic species, were recovered and seized: Sl. No. Species Recovered Quantity 1. Agapornis (commonly known as Love Birds of African Origin) 14 Nos. 2. Sun Parakeet (also known as Sun Conure) 1 No. 3. Love Bird of South American Origin 1 No. 4. Great Billed Parrot 2 Nos. 5. White Cockatoo 1 No. Total 19 Nos. 7.1. According to the Department, no documentary evidence establishing lawful importation or licit acquisition of these birds was produced during the search. Consequently, these birds were also seized under the provisions of the Customs Act on the allegation that they represented smuggled goods. 8. In the light of the above, it was gathered by the Revenue that Shri Domnic Jacob Sequeira was the principal recipient and intended consignee of the alleged smuggled consignment of live exotic birds and animals and was stated to have coordinated the procurement, transportation and onward distribution of the consignment through Myanmar and Aizawl to Kolkata, allegedly by using forged documents and maintaining regular contact with Shri Lalfingkima Sailo. ....
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....l importation had been produced; that possession of exotic birds by itself did not establish smuggling; and that the proceedings rested primarily upon assumptions rather than legally admissible evidence. 11. Upon adjudication, the Additional Commissioner of Customs, by Order-in-Original No. 98/ADC(P)/CUS/WB/19-20 dated 16.03.2020, ordered absolute confiscation of the 35 birds/mammals seized from the Kolkata Domestic Air Cargo Terminal as well as absolute confiscation of the 19 birds seized from the Pune residence of Shri Domnic Jacob Sequeira. The adjudicating authority also ordered confiscation of the Mahindra Scorpio vehicle alleged to have been used for transportation of the wildlife and imposed penalties of Rs.50,00,000/- upon Shri Domnic Jacob Sequeira and Rs.24,00,000/- upon Shri Gouse Gaffar Shaikh under Section 112(b) of the Customs Act, 1962, besides imposing penalty upon Shri Lalfingkima Sailo. 12. Aggrieved thereby, Shri Domnic Jacob Sequieira, Shri Gouse Gaffar Shaikh and Shri Balasaheb Appasaheb Dhumal preferred appeals before the Ld. Commissioner of Customs (Appeals), 3rd Floor, Custom House, 15/1, Strand Road, Kolkata - 700 001. Upon consideration of the record....
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....ding to the learned Counsel, Shri Sailo himself stated that he had received delivery of the live stock from one person namely "Racer" at Melbuk in Mizoram and thereafter dispatched the same to the noticee through Domestic Air Cargo. (iv) It is argued that no reliance can be placed upon the statement of the co-noticee in the absence of any independent corroboration. Although complete particulars of the said person "Racer" were allegedly made available to the DRI authorities, no investigation or enquiry was conducted with him. It is further contended that Shri Sailo himself admitted that the delivery of the live stock was taken at Melbuk, which admittedly falls within the territory of India. (v) He further submits that the appellate authority has relied upon only a selective portion of the statement of Shri Domnic Jacob Sequeira, wherein he had stated that one Ms. Sukanda of Bangkok intended to send the birds through Myanmar to Shri Lalfingkima Sailo. However, the very same statement also records that Shri Sailo had informed him that the birds would be brought with the assistance of a Government official and that the noticee himself had no knowledge as to the manner....
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....nd submitted that the live birds and animals in question had been smuggled into India in contravention of the provisions of the Foreign Trade Policy and the Foreign Trade (Development and Regulation) Act, 1992, read with Sections 3(2) and 3(3) of the said Act and Section 11 of the Customs Act, 1962. It was thus contended that the adjudicating authority had rightly ordered confiscation and imposed penalties based on the evidence gathered during investigation. Insofar as the appeals preferred by the Revenue are concerned, the learned Departmental Representative adopted the grounds set out in the respective Memoranda of Appeal and contended that the Ld. Commissioner (Appeals) had erred in directing release of the 19 live birds seized from the residential premises of Shri Domnic Jacob Sequeira, directing release of the Mahindra Scorpio vehicle in question, reducing the penalty imposed upon Shri Domnic Jacob Sequeira and setting aside the penalty imposed upon Shri Gouse Gaffar Shaikh. It was accordingly prayed that the impugned Order-in-Appeal be set aside to the aforesaid extent and the Order-in-Original be restored. 17. Heard the parties and considered their submissions. 18. Aft....
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....f 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 Court in the case of Dinesh Chandra (supra) have held that CITES do not govern the domestic trade, possession or breeding by any person including aviaries, but only international trade. It was further observed that 'internal trade' i.e. domestic trade within India, of 'exotic species' is not found in any schedule of the Wildlife (Protection) Act, 1972 and was never prohibited. Only 'external trade' i.e. international trade is governed by the conditions of Foreign Trade Policy. The Hon'ble Allahabad High Court further held tha....