ORDER
S.L. Peeran, Member (J)
1. For the purpose of hearing this appeal, the appellants are required to pre-deposit duty amount of Rs. 45,71,951/-. The appellants had imported live animals like dolphins and sealions and declared themselves as ‘Zoo’ seeking classification under tariff heading 9908 at NIL rate of duty. The department took a stand that the appellant is not a zoo within the meaning of being termed and the definitions under Wild Life (Protection) Act, 1972 and in terms of the clarification received from the Ministry of Environment and Forest. Therefore re-classification on the imported animals under tariff heading 0106.00 attracting 65% for sealions and 45% for dolphins and assessed the goods and confirmed the duty demand. There is a like sum of duty imposed as penalty with a further penalty of Rs. 50,000/- on Shri A.R. Pinheiro, Chairman and Managing Director of the appellant company.
2. We have heard in great detail counsel Shri Sree Prakash along with Shri Md. Shafi for the appellants and Smt. Bhaghay Devi, SDR in the matter.
3. Counsel submits that the appellants have a good case on merits as the term ‘Zoo’ requires to be gone in a larger sense and not in the sense in which the department has placed reliance. He has filed large number of documents to substantiate his case. He further submits that the appellants are faced with severe financial hardship and they have incurred a loss of Rs. 13.00 crores with a daily loss of Rs. 80,000/-. He submits that they are not in a position to pre-deposit any amount. He further submits that if absolute waiver is not granted then they will be put to severe hardship.
4. SDR submits that the appellants cannot be considered as ‘zoo’ in terms of the Wild Life (Protection) Act and in this regard clarification received from the Ministry of Environment and forest is clear on the point. She submits that the appellants are carrying amusement activity which is commercial in nature and not as a zoo within the term of the Wild Life (Protection) Act. Therefore by any stretch of imagination the appellants function cannot be considered as a zoo. She submits that they are not to be classified at NIL rate of duty tariff but in respect of tariff as wild animals and they are required to be put to terms.
5. On a careful consideration, prima facie it is not possible to come to a conclusion at this stage that the appellant is carrying a zoo in view of the clarification given by the Ministry of Environment and Forest. Prima facie, also in terms of common parlance test it could not be defined as zoo. However taking into consideration the financial hardship pleaded and records pertaining to their loss which is produced before us, we are of the considered opinion that the appellants would be put to hardship and we direct them to pre-deposit an amount of Rs. 4.50 lakhs within a period of 3 months from today and on such deposits, balance of duty and penalty amount stand waived and recovery stayed. On payment of these deposits appeal shall be heard for out of turn hearing on 11-3-2004. Call on to report compliance on 11-3-2004.