2026-VIL-1227-CESTAT-KOL-CU
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CUSTOMS CESTAT Cases

Customs - Burden of proof regarding smuggled nature of exotic wildlife not notified under Section 123 of the Customs Act, Absolute confiscation under Section 111 of the Customs Act - Appellant was apprehended for possession of exotic birds and mammals seized from a domestic air cargo terminal and residential premises; Department alleged they were smuggled items of foreign origin, while Appellant claimed they were procured through domestic suppliers within the country - Whether the onus lies on the Revenue or the Appellant to prove the smuggled nature of exotic birds and mammals which are not notified under Section 123 of the Customs Act – HELD - The exotic birds and mammals are not notified items within the meaning of Section 123 of the Customs Act; therefore, the onus lies on the Revenue to prove that the exotic birds and mammals in question are of foreign origin and that the Appellant has smuggled the same into the country through illicit means; the Appellant has discharged their onus regarding procurement of the exotic birds and mammals through licit means within the domestic area; the burden is cast on the Revenue to prove by means of tangible and corroborative evidence that the said exotic birds and mammals have been procured through illegal or illicit means in violation of the relevant Act or Rules, which the Revenue has failed to prove; accordingly, the burden of proof is held to lie on the Revenue - As the exotic birds and mammals in question are not notified under Section 123 of the Customs Act, the burden lies on the Revenue to prove that the Appellant has procured the same through illicit means and are smuggled in nature; the Revenue failed to establish the allegation of smuggling with any cogent evidence; internal trade within the country of exotic species is not found in any schedule of the Wildlife Protection Act and was never prohibited; mere acquisition, purchase or possession of exotic birds and mammals does not violate provisions under the Customs Act; it is only at the entry point, at the time of import, that any consignment of exotic birds and mammals intercepted upon establishing violation of the statutory provisions would be liable for confiscation; the Revenue failed to prove their case through tangible and corroborative evidence; accordingly, the confiscation of the exotic birds and mammals is set aside – The appeals are disposed of - Sustainability of penalties under Section 112 of the Customs Act - Whether penalties can be sustained when the Revenue fails to prove the illicit importation of the goods – HELD - As the Revenue has failed to prove their case regarding the smuggled nature of the goods, no penalty can be imposed on the Appellant in the facts and circumstances of the case; the Tribunal found no infirmity in the setting aside of the penalty imposed on the Respondent as the Revenue could not establish the illegal procurement or smuggling of the exotic birds and mammals; accordingly, the penalty imposed on the Appellant is set aside and the setting aside of the penalty on the Respondent is upheld - Liability of a vehicle for confiscation under Section 115 of the Customs Act - Vehicle was seized and ordered for confiscation on the belief it was used for the carriage of smuggled exotic birds and mammals from a domestic air cargo terminal - Whether the vehicle is liable for confiscation when the goods carried are not proved to be smuggled – HELD - The vehicle in question is not liable for confiscation because the Revenue failed to prove their case regarding the illicit nature of the goods transported; the Tribunal directed the release of the vehicle without the imposition of any redemption fine thereon; accordingly, the confiscation of the vehicle is set aside and the vehicle is directed to be released.
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