No Confiscation Of Exotic Birds Without Section 123 Notification Or Proof Of Smuggling: CESTAT Kolkata

On 3 July, the Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that Customs authorities cannot confiscate exotic birds and mammals or impose penalties merely on suspicion of smuggling, where the goods are not notified under Section 123 of the Customs Act and the Department fails to discharge the burden of proving illegal import.

A Bench comprising Judicial Member Justice (Dr.) Ashok Jindal and Technical Member K. Anpazhakan allowed the appeals filed by Domnic Jacob Sequeira and Gouse Gaffar Shaikh. It observed:

“In view of the discussion hereinabove and by following the ratio of the decision cited supra, we hold that as the exotic birds and mammals in question are not notified under Section 123 of the Customs Act, 1962, the burden lies on the Revenue to prove that the appellant/buyers/noticees have procured the same through illicit means and are smuggled in nature. The Revenue having failed to do so in this case, in the circumstances, the exotic birds / mammals in question (35 numbers and 19 numbers) cannot be held liable for confiscation. Consequently, the confiscation of the above said numbers of exotic birds and mammals stands set aside.”

The Directorate of Revenue Intelligence (DRI), intercepted 35 exotic birds and mammals at Kolkata Airport and recovered 19 exotic birds from the residence of appellant Domnic Jacob Sequeira at Pune. The Department alleged that the animals had been smuggled into India through the Indo-Myanmar border and proceeded with confiscation and penalty proceedings, including action against a vehicle allegedly used for transport.

The Tribunal noted that exotic birds and mammals are not notified goods under Section 123 of the Customs Act, and therefore the burden to establish smuggling squarely rested on the Revenue. It found that the Department relied primarily on recorded statements without any independent corroborative evidence of illegal importation.

Further, the Bench observed that mere possession of such animals within India does not, by itself, establish smuggling and directed the release of the Mahindra Scorpio vehicle without imposition of redemption fine.

Accordingly, the CESTAT set aside the confiscation of all 54 exotic birds and mammals and quashed the penalties.

Appearance for the Assessee: Shri Neerav Mainkar, Advocate

Appearance for the Revenue: Shri Faiz Ahmed, Authorized Representative