TMI Blog2005 (10) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... mpur synthetic cotton sarees, misc. ready-made garments, bed sheets buttons and took one person named Shri Jamal S.K. from the said godown premises. The goods along with the apprehended person were handed over to the officers of Jalangi Customs P.U. next day. The above goods were seized by the Customs officer of Jalangi Customs, P.U. on the ground that such goods have been stored/attempted for illegal exportation to Bangladesh through an unauthorized route in violation of Section 3(1) and 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 as amended read with Section 11 of the Customs Act, 1962 which renders the same liable for confiscation under Section 113(b) and 113(d) of the Customs Act. As per the 110 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over to the Customs. A statement was recorded from Mr. Jamal SK by the Customs officer wherein he admitted that the BSF personnel forcibly had lifted the goods from the shop premises. It was stated that the shop was situated at a distance of 9/10 K.M. from Indo-Bangladesh Border. The appellant also filed a petition to the Commissioner of Customs (Prev.) detailing with the facts of the case by the BSF personnel. He also submitted the documents and statement from local people who witnessed the incident. He further submits that the BSF has searched the premises without any search authorization and they have not observed any provisions of Section 110 of the CrPC. He further draws to our attention to the Notification No. 63/Customs dated 3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Code of Criminal Procedure, 1898 (5 of 1898) relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-section (5) of Sec. 165 of the said Code shall have effect as if for the word Magistrate , wherever it occurs, the words Commissioner of Customs were substituted. 3. He submits that power to search the premises are restricted only and no officer of the BSF below Assistant Commandant can search the premises. Certain provisions of the CrPC relating to search shall have to apply to the search under the Section and the sub-section (2) of the above Section specifies that provisions of the CrPC shall also applicable in the case as far as they apply to the searches und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act. He cites the following decisions in this regard : - (i) 2002 (147) E.L.T. 943 (Tribunal) = 2002 (53) RLT 984 (CEGAT) (ii) 1989 (39) E.L.T. 183 (Orissa) (iii) 1993 (64) E.L.T. 352 (Tribunal) (iv) 1992 (57) E.L.T. 284 (Tribunal) (v) 1998 (102) E.L.T. 654 (Tribunal). 6. He further submits that this Tribunal in the case of Abdus Salam Biswas reported in 2004 (176) E.L.T. 258 has held that seizure of textile materials from a shop premises by BSF would not render the goods liable for confiscation under Section 113(b) and 113(d) of the Customs Act inasmuch as there was no attempt to export the goods. He submits that his case is fully covered by the above decision of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sad that the law enforcing the authorities themselves do not observe the provisions of law. 9. The Hon'ble Apex Court in the case of State of Maharashtra v. Mohd. Yakub and Others reported in 1983 (13) E.L.T. 1637 (S.C.) has defined attempt. They have also made a distinction between preparation and attempt is as follows : - Exports - Preparation and attempt - Distinction between - There is distinction between preparation and attempt . Attempt begins where preparation ends. A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission. Attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were admittedly seized on the ground that the same were lying on the situated in the Indian Territory. The appellant also had a trade licence issued by the proper authority for carrying on the business. No reference has been made to any of the acts showing movements of the goods from the Indian Territory towards Bangladesh so as to arrive at a conclusion that there was an attempt to export the goods to Bangladesh. 11. The above observations equally apply in this case. We do not find any attempt have been made by the appellant to export the goods so as to make them liable for confiscation under Section 113 of the Customs Act. 12. The Tribunal in Kashmiri v. Collector of Customs reported in 1992 (57) E.L.T. 284 has explained attempt to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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