2009 (10) TMI 47 - HC - Customs

Restricted Items non inclusion of items in the bill of entry held that - Admittedly, in the Bills of entry 25 pieces of Alligator watch straps were not included - The said 25 watch straps were not declared in the Bill of Entry only because the foreign supplier has inadvertently omitted to incorporate the delivery number in the Airway Bill made available to the respondent and the declaration was made on that basis. In any case, the value of these watch straps was not significant being Rs.52,918/- - The said 25 watch straps were not declared in the Bill of Entry only because the foreign supplier has inadvertently omitted to incorporate the delivery number in the Airway Bill made available to the respondent and the declaration was made on that basis. In any case, the value of these watch straps was not significant being Rs.52,918/- - , the foreign exporter vide fax dated 2.5.2003 apologized for goods which did not appear in the Airway Bill bonafide mistake allowed to clear goods on payment of duty

Issues Involved:
1. Requirement of additional permissions from wildlife authorities despite having a CITES certificate.
2. Non-inclusion of 25 pieces of alligator watch straps in the Bill of Entry and the allegation of clandestine removal.

Issue-wise Detailed Analysis:

1. Requirement of Additional Permissions from Wildlife Authorities Despite Having a CITES Certificate:

The primary issue is whether the certificate of CITES produced by the respondent suffices, or if the law mandates permission from wildlife authorities as well. The adjudicating authority concluded that permission from wildlife authorities was required because the items were restricted. This conclusion was supported by a letter from the Wild Life Regional Office and the Directorate General of Foreign Trade, which clarified that parts and products of restricted live animals are also regulated under the Wild Life Protection Act and CITES.

The Commissioner (Appeals) affirmed this order, stating that the following were required before such items could be imported:
- CITES Export Permit from the country of origin.
- CITES Import Permit issued by the jurisdictional Wildlife Authority.
- No Objection Certificate from the Wildlife Officers.

However, the Tribunal found that the items under import were not subject to any restriction under the Wild Life Protection Act. It noted that the imported alligator skin was of the Mississipiens variety, which is not mentioned in the Wild Life Act Appendix, and there were no entries for ostrich and calf. Consequently, the Tribunal held that the lower authorities erred in treating the import as a violation of the Wild Life Protection Act and CITES. The Tribunal directed the return of the consignment, including the 25 pieces imported in excess of the declaration, after assessing them to customs duty.

The appellant argued that the issue was not whether the import was prohibited but whether the required certificates were produced. However, the court found this contention misconceived, noting that the Mississipiens species of crocodile and ostrich do not exist in India and are not listed under the Wild Life Protection Act. Therefore, clearance from wildlife authorities in India was not required. The court further noted that the CITES certificates from the country of origin sufficed, and additional certificates from Indian wildlife authorities were unnecessary.

2. Non-inclusion of 25 Pieces of Alligator Watch Straps in the Bill of Entry and the Allegation of Clandestine Removal:

The second issue was the non-inclusion of 25 pieces of alligator watch straps in the Bill of Entry. The respondent explained that the items were covered by three invoices from M/s. Mont Blanc, but only two invoices were handed over to the Custom House Agent by the airline. This omission was not due to any mistake by the respondent but was an error by the airline. The adjudicating authority ordered the absolute confiscation of the items, which was affirmed by the Commissioner (Appeals).

The Tribunal, however, found that the respondent had provided a reasonable explanation for the non-inclusion. The respondent was a regular importer of high-value items and had been paying substantial customs duties. The omission was a genuine mistake by the foreign supplier, as evidenced by correspondence between the respondent and the supplier. The court noted that the value of the omitted items was not significant, and the respondent's conduct indicated no intent to evade customs duty.

The court concluded that the respondent could clear the goods upon payment of the duty involved, which was a paltry sum. Therefore, the appeal was dismissed, and the Tribunal's order allowing the import was upheld.

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