2023 (7) TMI 640 - AT - Customs

Confiscation - Export of prohibited goods or not - woollen shawls of Pashmina wool - distinction between two kinds of shawls one made by Pashmina Wool and another by Shahtoosh wool - appellant was alleged to have deliberately engaged in dealing, keeping, concealing, selling or purchasing the shawls containing guard hair of Tibetan Antelope (prohibited goods) by mis-declaring and concealing them alongwith 53 Pashmina Shawls - HELD THAT - Shahtoosh is the name given to the wool of Tibetan Chiru-Antelope. These species are trapped killed and skinned for their short fine fleece called Shahtoosh which is the warmest and the softest wool of the world. Pashmina on the other hand comes from Tibetan mountain goats without killing the animal but the fleece is obtained. Hence, Shahtoosh is a wool obtained by killing the animal, resulting into the animal getting endangered whereas Pashmina is a craft. For the same reason the possession and sale of Shahtoosh are illegal in most of the countries including India, due to being prohibited under CITES and Wild Life Act, 1972. Despite making all efforts to ensure quality control, many times it is noticed that the shawl which is otherwise 100% pure pashmina and manufactured/weaved from pashmina wool contains a few stray guard hairs superficially or somehow contamination found belonging to different species or for that matter of Tibetan Antelope (Chiru) / Shahtoosh. However, it is to be noted that accidentally falling hair are a case of contamination and by no stretch of the imagination can be said to constitute trading an illegal item or Animal Article as defined under Wildlife Protection Act, the PIL contends. The difference can be observed from fibers surface morphology in such parameters. The report is absolutely silent about any of these methodologies and even about the noticed characteristics - denial to cross-examine amounts to violation of principle of natural justice. The confiscation has been confirmed based on un-detailed insufficient report, the examiner whereof was denied to stand the test of veracity - the issue has already been raised by the shawl traders before Delhi High Court, the PIL has been accepted. Notice has already been issued. Finally, keeping in view that shawls of both kind of stuff are soft and warm and it is difficult for a layman or a non-technical person to distinguish between the two merely on the basis of appearance. The test reports based on such scientifically advanced techniques have been placed on record by the appellants about the impugned shawls. The perusal reveals the elaborations as far as the morphological as well as scientific characteristics of Chiru hair and Circus hair are concerned. Since those features are missing in this report such report is held to have been wrongly relied upon to prosecute the appellant. Otherwise also the admitted fact is that the consignment of 59 shawls was found to have 53 Pashmina Shawls and six Shawls were detained on the basis of mere suspicion - no cogent verification has been arrived at to confirm the said suspicion. The prosecution is nothing but an outcome of presumption and surmises. The reports are insufficient to prove that the 6 shawls were prohibited goods. Question of those six shawls to be concealed on the ground of it being a prohibited product doesn t arise. Remaining 53 shawls also cannot be subjected to confiscation as question of them to be used for concealing the prohibited goods stands redundant - Appeal allowed.

Summary

Issues Involved:
1. Applicability of Sections 113, 114(i), and 114(AA) of the Customs Act, 1962.
2. Validity of forensic reports used to determine the presence of Tibetan Antelope hair.
3. Justification for confiscation and penalties imposed on the appellant.

Summary:

1. Applicability of Sections 113, 114(i), and 114(AA) of the Customs Act, 1962:
The appellant contested the applicability of Sections 113, 114(i), and 114(AA) of the Customs Act, 1962, arguing that the shawls exported were not prohibited goods. The appellant highlighted that the reports from Wild Life Institute of India and Zoological Survey of India, which identified the presence of Tibetan Antelope hair, lacked detailed procedures, observations, and statistical analysis, rendering them arbitrary and cryptic. The appellant also argued that the order was issued without a Show Cause Notice and without considering their retraction letter.

2. Validity of Forensic Reports:
The appellant provided testing methodologies and reports from reputed labs in India and abroad, certifying the absence of Shahtoosh fibers, and emphasized that the forensic reports in question lacked necessary details and parameters. The appellant cited the Centre for Cellular and Molecular Biology's stance that outdated techniques are unreliable and advocated for modern technology like Scanning Electron Microscopy (SEM) and DNA testing. The appellant argued that the forensic reports from the government labs were insufficiently detailed and did not stand up to scrutiny, thus violating principles of natural justice.

3. Justification for Confiscation and Penalties:
The appellant argued that the penalties imposed were unjustified due to the lack of culpability and relied on previous judgments to support their case. The appellant contended that the confiscation of the remaining 53 Pashmina shawls and the option to redeem them on payment of a fine were also unsustainable.

Tribunal's Observations:
The Tribunal noted the distinction between Pashmina and Shahtoosh wool, emphasizing that Shahtoosh is obtained by killing the endangered Tibetan Antelope, making its possession and sale illegal. The Tribunal observed that the forensic reports from government labs were vague and lacked details about the scientific methods used. The reports did not provide sufficient evidence to confirm the presence of Shahtoosh fibers. The Tribunal acknowledged the ongoing Public Interest Litigation (PIL) in the Delhi High Court, which highlighted the need for modern forensic techniques to distinguish between Pashmina and Shahtoosh.

Conclusion:
The Tribunal set aside the order under challenge, stating that the forensic reports were insufficient to prove that the six shawls were prohibited goods. Consequently, the confiscation of the remaining 53 shawls was also deemed unjustified. The appeal was allowed, and the penalties imposed were annulled.