Legal principle

Where exotic birds and animals are not notified under Section 123 of the Customs Act, 1962, the burden lies on the Revenue to prove by tangible and corroborative evidence that they were smuggled, and mere possession or domestic purchase of such species cannot attract confiscation or penalty.

Court decision

The Tribunal allowed the buyer's appeal and rejected the Revenue's appeals: confiscation of the 35 and 19 exotic birds/mammals was set aside as not liable to confiscation, the penalty on Domnic Jacob Sequeira was set aside, the setting aside of Gouse Gaffar Shaikh's penalty was upheld as showing no infirmity, and the Mahindra Scorpio was directed to be released without any redemption fine.

Facts

Acting on intelligence, DRI officers on 06.10.2018 intercepted five cages at the Kolkata Domestic Air Cargo Terminal containing 35 live exotic birds and mammals (including lemurs, marmosets, macaws, cockatoos and grey parrots) booked in the name of Shri Domnic Jacob Sequeira on Air India Flight AI-712 from Aizawl, allegedly smuggled from Myanmar through the Indo-Myanmar border. No import documents, bills of entry, licences or health certificates were produced, so the consignment was seized under reasonable belief of being liable to confiscation, and statements were recorded under Section 108 from Sequeira, Gouse Gaffar Shaikh and others. Adjudication resulted in confiscation of the 35 birds/animals, penalties, while the appellate order released 19 birds seized from Sequeira's Pune residence, set aside Shaikh's penalty and directed release of a Mahindra Scorpio vehicle, prompting cross-appeals by the buyers and the Revenue.

Key provisions

• Section 123, Customs Act, 1962 — Burden of proof in certain cases
• Section 112(b), Customs Act, 1962 — Penalty for improper importation of goods
• Section 108, Customs Act, 1962 — Power to summon persons to give evidence and produce documents
• Section 11, Customs Act, 1962 — Power to prohibit importation or exportation of goods
• Section 3(2), The Foreign Trade (Development and Regulation) Act, 1992 — Powers to make provisions relating to imports and exports.
• Section 110, Customs Act, 1962 — Seizure of goods, documents and things
• Section 111(d), Customs Act, 1962 — Confiscation of improperly imported goods etc
• Section 3(2), Customs Act, 1962 — Classes of officers of customs