SHAIK MD OMER Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This is an appeal against an order of Banerjee J., dated 30th April, 1965 whereby the learned Judge has discharged the rule taken out by the appellant and made no order as to costs. The facts hi this case are shortly as follows: The appellant Shaik Md. Omer describes himself as an industrialist who is interested in breeding and maintenance of pedigree horses. In his petition he says that ha owns several horses which are treated and kept as his pet animals & that he also owns race horses & since 1950 he started breeding horses out of mares owned by him. He owns two stallions by the name of Pieta and Rontgen. He further says that he has earned considerable name and reputation as a race horse owner and For racing with the horses bred by himself and he has won several prizes awarded for horse-racing. In September, 1964 the appellant went to Europe and while in Switzerland he received a letter dated October 5, 1964 from Messrs. British Bloodstock Agency Ltd.. London, informing him that one of its clients was interested in obtaining a foal by his stallion "Pieta" from the said client's Brood Mare. It was eventually agreed by and between the appellant and the said Messrs British Bloodstock Agency Ltd., that one of its clients the Glasgow Stud Farm would lease a brown English mare to the appellant, which would be shipped to India and would be kept there pending her producing two foals by the appellant's breeding race-horse "Pieta" after which the mare would be returned to England. The petitioner returned to Calcutta on November 7, 1964 by air and submitted at Dum Dum Airport an international passenger's Baggage Declaration indicating that 7 unaccompanied baggages would follow him by sea or air. Eventually, a brown mare by the name of "Jury Maid" was shipped to Calcutta by S.S. "Chinkoa", which was due to arrive at Calcutta on or about December 25, 1964. On or about January 7, 1965 the appellant through his clearing agents submitted to the Customs authority a second Baggage Declaration for clearance of the said mare which was stated to be arriving at the Port of Calcutta by the said S.S. "Chinkoa" on or about the middle of January, 1965. It was stated in the said Declaration Form that the said baggage comprised of one brood mare, described as a "pet animal", not for racing but for breeding purposes only, pregnant and to be returned to the United Kingdom after she was in her next pregnancy with a Stallion in India. He states that the said Baggage Declaration Form was returned to the appellant with an endorsement dated January 12, 1965, as follows: "It is not a case of unaccompanied baggage. The importation cannot be treated as of a pet animal. The party may file Bill of Entry in Group I for clearance."

(2.) It is stated that in order to facilitate expeditious clearance of the said mare from the ship immediately upon her arrival in Calcutta, the appellant executed a bond in favour of the Collector of Customs, Calcutta, dated January 14, 1965, undertaking to submit the Bill of Entry and the relative documents within 48 hours of the delivery of the said mare from the said ship and further undertaking to pay a sum of Rupees 15,000 on the appellants failure to do so. This bond was accepted on January 16, 1965 subject to the condition that after off-loading, the Preventive Officer of the Customs would accompany the mare to the Government Veterinary College, Belgachia and the animal would remain there under Customs guard until the bond was redeemed. The mare arrived at Calcutta on January 18, 1965 and was admitted by the appellant into the Bengal Veterinary College Hospital in terms of the said bond. There was, however, a guard kept on behalf of the Customs authority to see that the mare was not removed. There was no Customs clearance permit issued, permitting the clearance of the mare. On January 20, 1965, the appellant submitted a Bill of Entry estimating the value of the animal at Rs. 5807.03 nP. Along with the Bill of Entry a certificate was annexed as given by the Additional Director of Animal Husbandry, Lucknow, U. P. Thereafter, the Customs Appraiser directed him to produce certain documents including the import trade control licence. The appellant could not produce such a licence for the simple reason that he did not have one. He however, contended that no such licence was required as the mare was a "pet animal" and could be imported without a licence under the provisions of the passengers (Non-Tourist) Baggage Rules. On the 1st February, 1965 the Assistant Collector of Customs issued a show cause notice which is annexure I to the petition and appears at pages 35 to 38 of the Paper Book. Firstly, it states that the imported mare was a high pedigree animal used for breeding purposes and the value was under-estimated. No proper certificate from the Director of Animal Husbandry of the State of West Bengal had been produced. Secondly, the importation of such a horse required an I. T. C. licence but no such licence had been produced. The goods, therefore, had been imported in contravention of Government of India, Ministry of Commerce and Industries Order No. 17/55 dated 7th December, 1955 read with Section 3(1) of the Imports and Exports (Control) Act, 1947. The notice concluded as follows:

(3.) The petitioner showed cause in writing. The stand taken was that the brood mare which had been imported was a 'pet animal' and could be imported without any import Trade Control restrictions, in terms of the Import Trade Control, Government of India, Ministry of Commerce and Industry Public Notice No. 1-ITC (PN)/61 dated the 2nd January 1961. This is a notification relating to the baggage rules mentioned above. The appellant was heard before the Collector of Customs but he disallowed the contention of the appellant by his order dated 15th March, 1965, a copy whereof is annexure 'O' to the petition and is set out at pages 51 to 53 of the Paper Book. In the said order it was held that the importation was as a result of a business dealing and it was not the case of the importation of a 'pet animal' by a passenger which would be covered by the exemption granted by the Baggage Rules. The relevant part of the order is set out below: