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TMI Blog2009 (10) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ife authorities was required for their clearance. It was also alleged that the examination of the consignment revealed an excess of 25 pieces of alligator watch straps valued at Rs.52,980/- and that the said watch straps had not been included in the Bill of Entry. Held that- Moreover, as the item is otherwise freely importable and certificate of CITES is produced, and the duty of a paltry sum of Rs.52,914/- is only involved, in the interest of justice, the respondent can be allowed to clear the goods subject to the payment of aforesaid duty.We, thus, are of the opinion that there is no merit in this appeal and the same is dismissed. - 12 of 2005 - - - Dated:- 30-10-2009 - A.K. Sikri and Siddharth Mridul, JJ. Shri A.K. Bhardwaj, Advocate, for the Appellant. S/Shri M.P. Devnath with Abhishek Anand, Advocates, for the Respondent. [Judgment per: A.K. Sikri, J.]. - The respondent is engaged in the business of import and distribution of Mont Blanc products supplied by M/s. Mont Blanc, Switzerland. The respondent has a boutique at Maurya Sheraton Hotel in Delhi and their office is located at Rajkot in Gujarat. The respondent had placed an order for the supply of watch stra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed items and were, thus, liable for confiscation. Absolute confiscation was ordered accordingly. 4. The respondent challenged this order by filing an appeal before the Commissioner of Customs (Appeals), New Delhi. On the application for waiver of pre-deposit/stay application, the appellant authority passed orders dated 31-12-2003 directing the respondent to deposit Rs.1,00,000/-. This amount was deposited on 6-1-2004. After hearing the appeal, the Commissioner (Appeals) confirmed the order of the adjudicating authority and dismissed the appeal. 5. Aggrieved with the order of the Commissioner (Appeals), the respondent on 23-3-2005 filed an appeal before the Customs, Excise Service Tax Appellate Tribunal (CESTAT), New Delhi. The CESTAT directed the respondent to deposit a further amount of Rs.1.5 lakhs which the respondent complied with by depositing the said amount on 30-4-2005. CESTAT disposed of the appeal filed by the respondent vide Final Order No. 640/05-NB-A of CESTAT dated 31-5-2005 [2006 (205) E.L.T. 217 (Tribunal)] by allowing the appeal. In the final order, the Tribunal has held that - (i) the lower authorities were clearly in error in treating the instant import as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the items are freely importable as per ITC (HS). However, freely importable items do not require a licence from DGFT but the provisions of the licensing note will apply. As such, all conditions stipulated in Exim Policy or other laws or rules will have to be complied with by the importer." 8. The Commissioner (Appeals), while affirming the aforesaid order, observed as under:- "5. I have carefully considered the various submissions made by the appellant in the Appeal Memorandum as also the submissions made during the personal hearing. I observe that the subject goods are covered in the CITES schedule. As such, provision of the Wild Life Act would be applicable. I observe; that the following are essentially required before such items can be imported: (a) CITES Export Permit from country of origin. (b) CITES Import Permit issued by jurisdictional Wild Life Authority. (c) Port examination: No Objection Certificate issued by the Wild Life Officers. In the instant case, the CITES Import Permit and the No Objection Certificate for the Wild Life Officer were not available. The adjudication and subsequent confiscation therefore appear to be unassailable. Considering the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicated by either of the revenue authorities or the CESTAT. What could be adjudicated by the appellate authority was that whether the two certificates required to be produced by the importers wore produced or not produced. Admittedly, such certificates i.e. CITES import permit, issued by jurisdictional wild life authority and no objection certificate issued by wildlife officers were not produced by the importer. 11. Learned counsel also referred to various provisions of CITES as well as interpretation of various terms given in the Appendix I, II III of CITES, on the basis of which he tried to argue that the references given there were only for the purposes of information or classification. They were intended to indicate the species within the family concerned that are included in the Appendix. Ostrich and Crocodylus Palustris and Crocodylus Porosus are mentioned in prohibited categories. He further referred to OM dated 4-7-2001 issued by the Ministry of Environment and Forest prohibiting import of trophies and animal articles of lookalike species. On this basis, he argued that merely because the Mississippian species of crocodile was not mentioned in the Wild Life Protect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that neither at the adjudication stage, when the order in original was passed, nor at the two subsequent appellate stages, such a certificate was sought. The appellant cannot take this kind of plea in this appeal for the first time. We, thus, are of the opinion that this question is rightly decided by the Tribunal in favour of the respondent. 15. Admittedly, in the Bills of entry 25 pieces of Alligator watch straps were not included. Submission of the respondent was that they are regular importers of such high value items from Mont Blanc and have been paying customs duty of the order of about Rs.2 crores annually. In the year 2004-05, the payment of customs duty exceeded Rs.5 crores. 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/-. If it was the intention of the respondent to evade customs duty, the respondent would not have even placed an order for that item. The respondent's bona fide conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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