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TMI Blog2009 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... MRIDUL JJ. Mr. A.K. Bhardwaj, Advocate, for the appellant. Mr. M.P. Devnath with Mr. 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 straps made of ostrich, calf and alligator leather. The airline through which the goods came handed over two invoices to the Custom House Agent of the respondent and on the basis of these two invoices, the Custom House Agent filed Bill of Entry No. 467881 dated 4.4.2003. Based on the said two invoices (Invoice No. 10488473 and 10488486), the respondent declared 513 and 600 watch straps respectively. The respondent had also produced a certificate under Convention of International Trade in Endangered Species (hereinafter referred to as 'CITES'). The goods were examined and it was felt that he leather straps of ostrich and alligator were restricted in terms of licensing note to Chapter 1 of ITC (HS) and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 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 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 in violation of Wild Life Protection Act and CITES, (ii) the confiscation of the consignment was not legal under those provisions, and (iii) directed the lower authorities to return the consignment included 25 pieces imported in excess of the declaration to the respondent and after assessing the same to customs duty. 6. Present appeal is filed challenging the order dated 31.5.2005 of the Appellate Tribunal. Thereafter, the appellant also filed additional submissions dated 31.8.2006 wherein following questions of law were raised :- "a) As per ITC (HS) Regulations those live animals which are restricted for import, their parts and products are also restricted under the Regulations. b) Failure of the respondent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially 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 value of the goods viz. Rs. 11,03,533/- the personal penalty of Rs.2,50,000/- also appears to be justifiable." 9. In the brief order of the Tribunal, entire discussion is in paras 3 4 thereof, which is also reproduced hereunder :- "3. When the appeal came up for hearing today, both sides took us through the provisions of the law in question in great detail. In regard to Alligator leather, it is seen that the appellant has produced CITES certificate from Federal Veterinary Office of the Government of Switzerland for the export of 205 Nos. of watch straps. Learned counsel has also pointed out that the Alligator skin under import is of Mississipiens variety, while crocodiles mentioned in Wild Life Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. 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 Protection Act would be no ground to allow the import thereof without the permission of the authorities under the Wild Life Protection Act. 12. The aforesaid contention of learned counsel for the appellant is clearly misconceived. We may first point out the admitted factual position which appears in this case, namely: (a) The Mississippian species of crocodile does not exist in India. Same is the position in regard to Ostrich. (b) There are no entries of these species under the Wild Life Protection Act. Reason is obvious. Since these species do not exist in India, there is no question of their protection in this country. (c) The adjudicating authority himself concluded that watch str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conduct in this regard is evident from the correspondence exchanged between the respondent and the foreign exporter. The respondent vide fax dated 18.4.2003 requested the foreign exporter to inform the status of Delivery Note No. 5375747 dated 28.11.2002 and Delivery Note No. 5192159 dated 31.7.2002. In response to this letter, the foreign exporter vide fax dated 2.5.2003 apologized for DEL 5192159 which did not appear in the Airway Bill No. 176-86692281. Thus, these documents conclusively show that there was a genuine mistake on the part of the exporter in not reflecting the 25 straps in the Airway Bill and correspondingly on the invoice. 16. The aforesaid explanation is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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