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QamruddIn Khan Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1986)(6)LC615Tri(Delhi)
AppellantQamruddIn Khan
RespondentCollector of Customs
Excerpt:
.....collector who thereafter issued a review notice on 26-2-1980 to the appellant, stating that the parrots imported were of rare species and were cited in appendix i, ii and iii to the convention on international trade in endangered species of wild founa and flora and had been imported in violation of restriction in force on their import under clause 3(2) of the imports (control) order, 1955 issued under s. 3 and s. 4a of the imports & exports (control) act, 1947.3. in his reply, the appellant, inter alia, argued that the convention referred to in the show cause notice had not been ratified by any legislation in india and, that, the parrots are birds and neither founa nor flora. during the hearing before the addl. collector, it was further argued by the counsel for the appellant that.....
Judgment:
1. Shri Qamruddin Khan had preferred this Revision Petition before the Government of India against the Order-in-Review passed under S. 130(2) of the Customs Act by the Additional Collector of Customs, Delhi whereby the Addl. Collector by his Order dated 30-8-1980, modified the order of the Assistant Collector, Air Customs, New Delhi. This Revision Petition has since been transferred for being dealt with as an appeal before this Tribunal.

2. The facts of the case are that the appellant arrived in Delhi from Singapore on 31-12-1979. He sought clearance of 15 parrots as his unaccompanied baggage. The Customs Officers consulted the Director, Delhi Zoo and appraised the assessable value of the parrots at Rs. 15,460 c.i.f. This valuation was contested by the appellant who stated that he had purchased the parrots at Singapore for US $ 100 only but that he did not have any receipt. He requested that the case be adjudicated without the issue of show cause notice. The parrots were assessed to duty at the appraised value in the absence of documentary evidence from the appellant in support of his claim for lower valuation. He stated before the adjudicating authority that the parrots had been brought for breeding purposes and local sale. The Assistant Collector held that the import was unauthorised and confiscated the parrots giving the appellant the option for redeeming them by paying a fine of Rs. 5,000 in lieu of confiscation. During the pendency of the case, the parrots were kept in the custody of the Delhi Zoo and before the option to redeem the parrots was exercised by the appellant, the records of the case were called for by the Addl. Collector who thereafter issued a Review Notice on 26-2-1980 to the appellant, stating that the parrots imported were of rare species and were cited in Appendix I, II and III to the Convention on International Trade in Endangered Species of Wild Founa and Flora and had been imported in violation of restriction in force on their import under Clause 3(2) of the Imports (Control) Order, 1955 issued under S. 3 and S. 4A of the Imports & Exports (Control) Act, 1947.

3. In his reply, the appellant, inter alia, argued that the Convention referred to in the show cause notice had not been ratified by any legislation in India and, that, the parrots are birds and neither founa nor flora. During the hearing before the Addl. Collector, it was further argued by the Counsel for the Appellant that 12 out of the 15 parrots are not covered by any list of the Convention and that since he had declared items before the Customs Officers and the case having been adjudicated, there was no justification for reviewing the case. The Addl. Collector called upon the Inspector of Wild Life Preservation for his expert opinion as regards to the nature and species of the birds and it was observed by him that 3 out of the 15 birds >were covered by Appendices I and II and 1 bird by Appendix III. He held that there was no doubt that the parrots intended for commercial purposes, as distinct from pet animals allowable as baggage, could not be imported without the cover of an import licence, and, by virtue of S. 3(2) of the Imports & Exports (Control) Act, infringements of the provisions of Imports (Control) Order, 1955 are to be deemed to be restrictions imposed under S. 11 of the Customs Act and hence liable for confiscation under Customs Act. In this view of the matter, the Addl.

Collector modified the order of the Assistant Collector and ordered the absolute confiscation of the parrots, subject to their being alive, as it was found that during the pendency of the proceedings, two parrots had died.

4. The learned Counsel for the Appellant, Shri N.C. Chawla, in his argument before the Tribunal, urged that the Import Policy does not have the force of law. According to him, any prohibition on import should be expressly provided for in the related law, and he went on to point out that in the Imports & Exports (Control) Act, 1947, there was no ban on such imports. He reiterated the argument that the parrots being birds are- neither fauna nor flora and hence, the provisions of the Convention are not applicable to them, and that, further even the expert called by the Department could not assert that all the parrots were figuring in the Appendices to the Convention. Even in the Import Policy, the Counsel contended, the ban is only on wild/zoo animals and birds. The parrots imported are neither wild nor zoo animals. They are pets allowable under Baggage Rules. Clearly, according to him, 11 of the birds were not covered by the Convention. The Counsel also pointed out that the Department had failed to show whether there had been any ratifying legislation to the Convention. He stated that the appellant had already paid the duty on the parrots.

5. Shri S. Chatterjee, the learned JDR appearing for the Department pointed out that the Import Policy at the relevant time was contained in para 76 of the Policy for the period 1979-80 which read as follows : "76. Import of wild/zoo animals and birds will be allowed, both on the basis of barter and purchases, by Government recognised zoos for zoological purposes only. Such imports will be subject to the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora." He pointed out that import could take place only within the framework of this provision and it was otherwise banned. Since the appellant had not produced any valid import licence, the Addl. Collector's Order-in-Review of Assistant Collector's Order, culminating in the absolute confiscation of the parrots, was valid in law.

6. We have given careful consideration to the submissions made on both sides. Under S. 3 of the Imports & Exports (Control) Act, 1947, the Central Government is empowered to prohibit, restrict or otherwise control imports. The Imports (Control) Order, 1955 has been issued under the above Act. Schedule I of this Order contains the list of articles import of which is controlled. S. 3 of the Imports (Control) Order, 1955 states that no goods figuring in Schedule I specified in that Order could be imported except with licence or CCP, etc. Schedule I to this Order contains a note stating that each Heading therein corresponds to the respective Chapter and Heading Number of the First Schedule to the Customs Tariff Act, 1975. The relevant Import Policy for this particular case is that of 1979-80 and this Policy was brought into effect under a Gazette Notification dated 3-5-1979 issued under the Import (Control) Order, 1955, as amended up to 3-5-1979. In the Schedule thereto, S.1 includes live animals : animal products, under Chapter I. The Heading 01.05 includes live poultry, i.e., fowls, ducks, geese, turkeys and guinea fowls. Heading 01.06 covers other live animals. The term "Other live animals", according to Customs Cooperative Council Nomenclature, includes, inter alia, parrots.

Therefore, the inclusion of even fowls and ducks in the Schedule and the scope of the Heading "Other live animals" given in the CCCN, which serves as a guide for interpreting Customs Tariff, as the Tariff largely follows this Nomenclature, and hence has persuasive value, it becomes clear that parrots would be covered under Schedule I to the Imports (Control) Order, 1955 and in the relevant Import Policy issued under that Order, at para 76 therto, it has been laid down that import of wild/zoo animals and birds is allowable to Government recognised zoos for zoological purposes only, subject to the Convention on International Trade in Endangered Species.

7. From the above discussions, it follows that the prohibition on import under the Imports & Exports (Control) Act read with Import (Control) Order has been clearly spelt out, and in this context, the argument of the counsel for the appellant that there is no express prohibition in the related law cannot stand. Further, as this Policy framed under the law relating to imports itself subjects the restriction to the provisions of the Convention, it also provides for the necessary ratification. It is also seen that in the Foreword to the Convention, it has been mentioned that the Government of India signed this Convention in July 1974 and deposited the Instrument of Ratification on July 20, 1976.

8. The other argument put forth by the Counsel was that the parrots were pets and not zoo animals and were permissible under the Baggage Rules. This contention is untenable because there is no such category as pets. As has been observed by the Calcutta High Court in the case of Sheikh Mohd. Omar v. Collector of Customs (AIR 1967 Cal. 16), what happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such animals or birds, it may be said to have become a "pet" of that person. In this instance, in the proceedings before the Assistant Collector, whose order is not contested by the appellant, the appellant has stated that the parrots had been brought by him for breeding purposes and for local sale. His intention clearly is commercial and these parrots in the circumstances, cannot be described as the pets of the appellant. As for their import, as baggage, it is observed that under ITC PN No. 34/78 dated 16-5-1978 under the subject "Import of goods as personal baggage" issued by the Import Trade Control Authorities, it has been laid down in para 7 that clearance of domestic pets like cats and birds in a limited number may be allowed as baggage. The appellant in this case has not shown that he was such a parrot lover as to keep 15 of them as pets, besides his own admission that he had brought them for commercial purposes. The import, therefore, required an import licence or CCP which the appellant did not possess, and according to the Policy at the relevant time, the import of such birds was banned except by the Government recognised zoos. The observation of the Calcutta High Court in Sheikh Mohd. Omar v. Collector of Customs ibid also supports the above view, wherein the High Court held that the import of a mare for breeding purposes as unaccompanied baggage was unauthorised nor, in the circumstances of the case, could the mare be called a pet animal. The ratio of this decision is applicable in this case. Therefore, the import being unauthorised, and the goods being banned items, the absolute confiscation thereof is valid in law.

9. In the result, there is no reason to interfere with the Order passed by the Additional Collector of Customs, Delhi. The appeal is rejected.


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