The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata Bench, has set aside the confiscation of 54 exotic birds and mammals and quashed penalties imposed on the individuals involved, holding that exotic birds and mammals are not notified goods under Section 123 of the Customs Act, 1962.
The bench of Ashok Jindal (Judicial Member) and K. Anpazhakan (Technical Member) observed that the burden of proving that the exotic birds and mammals are smuggled rests entirely on the department. Since the Department failed to produce tangible and corroborative evidence establishing illegal importation, the confiscation and penalties could not be sustained.
The dispute arose from an investigation initiated by the Directorate of Revenue Intelligence (DRI) in October 2018 following specific intelligence that a consignment of exotic birds and mammals had allegedly been smuggled into India through the Indo-Myanmar border and transported from Aizawl to Kolkata via domestic air cargo.
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Acting on the intelligence, DRI officers intercepted five cages at the Domestic Air Cargo Terminal of Netaji Subhas Chandra Bose International Airport, Kolkata. The consignment contained 35 live exotic birds and mammals, including Black and White Ruffed Lemurs, Marmosets, Bengal Cats, Birds of Paradise, Blue Gold Macaws, Silver Macaws, Knobbed Hornbills, Yellow-tailed Black Cockatoos, Cassowary Chicks, White Cockatoos, Eclectus Parrots and Grey Parrots.
As no import documents, Bills of Entry, licences or other import-related records were produced at the time of interception, the officers seized the animals on the belief that they had been illegally imported into India.
During the investigation, the DRI also searched residential premises in Pune, where 19 additional exotic birds were recovered. These included Love Birds, Sun Parakeets, Great Billed Parrots and a White Cockatoo.
The Department alleged that these birds too were of foreign origin and had been acquired without any lawful import documentation. Accordingly, they were also seized under the Customs Act.
According to the Department, the wildlife had been procured through an international network involving suppliers operating from Bangkok and Myanmar before entering India through Mizoram.
The investigation relied heavily on statements recorded under Section 108 of the Customs Act, alleging that the consignment was transported through domestic air cargo after entering India illegally and that forged veterinary certificates had been used to facilitate movement of the animals.
The Department also confiscated a Mahindra Scorpio vehicle allegedly intended to transport the birds from Kolkata to Pune and imposed substantial penalties on the persons allegedly involved.
After examining the evidence, the Tribunal held that the Department had not discharged its legal burden of proving that the birds and mammals had actually been smuggled into India.
The Bench noted that the supplier’s own statement revealed that the animals had been handed over within Mizoram by another individual, indicating domestic procurement rather than direct evidence of illegal importation.
The Tribunal emphasised that mere possession of exotic birds does not automatically establish smuggling, particularly when such species are not covered under Section 123 of the Customs Act. Since these are non-notified goods, no statutory presumption of smuggling arises against the person in possession.
The Bench further observed that the Department had relied primarily on statements and assumptions without conducting adequate investigation to establish the alleged cross-border movement of the wildlife.
The Tribunal relied upon its earlier decision in Rajesh Agarwal @ Raju Sagar v. Commissioner of Customs, Indore, which had held that exotic birds and animals not notified under Section 123 cannot be presumed to be smuggled merely because they are of foreign origin.
The Bench also referred to decisions of the Allahabad High Court, Bombay High Court and Rajasthan High Court, which have consistently held that domestic possession, breeding and trade of exotic species not covered under the Wildlife (Protection) Act, 1972 are not prohibited. The courts have clarified that restrictions primarily apply to international trade and importation, and not to domestic transactions involving such species.
Allowing the appeals, CESTAT set aside the confiscation of all 35 exotic birds and mammals seized from the Kolkata Domestic Air Cargo Terminal as well as the 19 birds seized from the Pune residence.
The Tribunal also quashed the penalty imposed on the principal noticee, upheld the appellate authority’s decision setting aside the penalty imposed on another individual, and ordered the release of the Mahindra Scorpio vehicle without payment of any redemption fine.
The Bench concluded that in the absence of credible evidence establishing illegal importation, neither confiscation nor penalties could survive under the Customs Act.
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