1995 (5) TMI 121 - HC - Central Excise

Issues Involved:
1. Legality and validity of the show cause notice issued under Section 124 of the Customs Act, 1962.
2. Jurisdiction of the Customs Officers to issue the show cause notice.
3. Whether the actions of the petitioners constituted an attempt to commit an offense or merely preparation.
4. Applicability of the Supreme Court decisions in Malkiat Singh v. State of Punjab and Nasu Sheikh v. State of Bihar.
5. Sufficiency of material for Customs Officers to form a reasonable belief for confiscation under Section 113 of the Customs Act, 1962.

Detailed Analysis:

1. Legality and Validity of the Show Cause Notice:
The show cause notice dated June 18, 1983, was issued under Section 124 of the Customs Act, 1962, alleging that the goods were being smuggled to Pakistan through an unauthorized route. The learned Single Judge quashed the notice, stating that the theory of transporting the whisky and rum through an unspecified route was not initially mentioned in the seizure memo. However, the High Court found that the legality and validity of the show cause notice should be judged from its contents. The notice clearly stated that the goods were being exported to Pakistan through an unspecified route, based on admissions by Peerulal and others. This provided sufficient grounds for the Customs Officers to form a reasonable belief that the goods were being smuggled.

2. Jurisdiction of the Customs Officers:
The High Court emphasized that the Customs Officers had the jurisdiction to issue the show cause notice based on the admissions made by Peerulal and others in their statements recorded under Section 108 of the Customs Act, 1962. These admissions indicated that the goods were being smuggled, thus justifying the issuance of the notice.

3. Attempt to Commit an Offense vs. Preparation:
The High Court rejected the argument that the actions of the petitioners constituted mere preparation rather than an attempt to commit an offense. The Court referred to the Supreme Court's definition of an "attempt" as a direct movement towards the commission of an offense after preparations are made. The Court found that the overt acts done by the petitioners, such as loading the whisky into the jeep and attempting to transport it through an unauthorized route, constituted an attempt to commit an offense.

4. Applicability of Supreme Court Decisions:
The petitioners relied on the Supreme Court decisions in Malkiat Singh v. State of Punjab and Nasu Sheikh v. State of Bihar to argue that their actions were merely preparatory. However, the High Court distinguished these cases based on their specific fact situations and legal contexts. The Court noted that in the present case, there was sufficient material to form a reasonable belief that the goods were being smuggled, which was not the case in the cited decisions.

5. Sufficiency of Material for Reasonable Belief:
The High Court found that there was sufficient material for the Customs Officers to form a reasonable belief that the goods were liable to confiscation under Section 113 of the Customs Act, 1962. The Court listed several circumstances, such as the storage of goods at an unauthorized place, the loading of goods by Peerulal, the attempt to transport goods through an unauthorized route, and the admissions by the individuals involved, which collectively justified the reasonable belief.

Conclusion:
The High Court reversed and set aside the judgment and order of the learned Single Judge, thereby allowing the appeal filed by the Union of India. The Customs Officers were directed to proceed with the adjudication of the show cause notice in accordance with the law. The petitioners were given the liberty to file a reply to the show cause notice within one month from the date of the judgment, which would be treated as having been filed within time.

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