TMI Blog1990 (5) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Collector (Appeals) reversed this decision. The present appeal is directed against that decision. 2. The learned JDR, Sri Choudhury, contended that these goods were found lying on the road. He also drew my attention to the observations of the learned Deputy Collector to the effect that the circumstances have to be analysed and viewed, in the context of generally what happens at the border. It was also stated in the order by the learned Deputy Collector that, it is a fact that such items are smuggled across the border, and in many cases the goods are just left on the roadside to be smuggled out of the country stealthily depending upon the opportunity. The Deputy Collector also observed that in such cases even if the goods hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the respondent, contended that the respondent had produced all the bills and vouchers for purchase of the goods in question. He also contended that the transport voucher from the transport company was also produced by the respondent, when he made the claim before the A.C. He also contended that when the goods were being transported in the lorry, these were forcibly taken out by the B.S.F. officers and he disputed the fact that those were found lying by the roadside. He also contended alternatively that the facts and circumstances of this case will not show that there was an attempt to export these goods out of India. In this connection he relied on the following decisions : (a) 1986 (26) E.L.T. 766 (Trib.) = 1986 (8) ECR 519 (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the goods were taken forcibly from the truck. He does not dispute in the order that the goods were not actually taken in the truck. No investigation is made in this behalf to contradict the claim of the respondent. He had produced the necessary documents, and when such documents are produced by the respondent, some investigation should have been made to show that actually these goods were not taken in the truck. What is disputed in the order is that the respondent has not produced evidence to show that these goods were not shown to have been taken by force from the truck. It is no doubt true that the affidavit and the declaration produced at a later stage may not have much evidenciary value, as has been held by the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept of taking out will have no meaning. In this case, admittedly, the goods were stationary. Even if the respondent has not established by submitting evidence that they were taken forcibly from the truck, by BSF officers, there is nothing to show that the goods were in movement. Suppose if the goods were found in movement pointing towards the border and there was no other explanation to be furnished by the respondent with respect to that movement, then a presumption may be drawn that the movement was towards the border. In this case that evidence is lacking. The learned Counsel placed reliance on a decision reported in 1986 (25) E.L.T. 574 (T) = 1986 (8) ECR 612. I do not find anything in support of the respondent s case in that decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applying the above test to this case, if it is assumed that the goods were found by the side of the road, it can only be said that the act already done is such that if the respondent changes his mind and does not proceed further in its progress, it would be completely harmless. Thus, taking into consideration all these aspects of the case, at best it can be said that it may amount to a preparation. There is a long gap in between preparation and attempt and that gap should be filled in before the respondent is found guilty of the above said offence. Such evidence is missing in this case and the learned Collector (Appeals) has already given the benefit to the respondent. I find no reason to interfere with the above orders and find no infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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