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TMI Blog2011 (6) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the diamonds concealed in a sports jacket had been brought to DHL (Courier) by Shri Perez Hender Valmore for export to Italy. He had also furnished a declaration to the courier to the effect that the packet contained garments and other personal goods only.The courier prepared an Airway Bill with the above person as the consignor and one Shri Giorgio Borrelli (Italy) as the consignee. Shortly after preparation of the Airway Bill, DRI officers stepped in, having received intelligence to the effect that diamonds were likely to be couriered through DHL. After inspecting the goods, the DRI officers seized them under a Panchanama. The valuation of the seized diamonds was got duly done under subsequent Panchanama on 26.8.2010. Subsequently, on 27.8.2010, the Managing Director and Asia Sales Manager of M/s Dalumi Diamonds (Dalumi Hong Kong Ltd.) came to the DRI office and informed that they had imported the diamonds for an exhibition held at Goregaon, Mumbai.They also gave an account of what happened to the diamonds imported by them for the said exhibition. They had imported a total quantity of 4422.395 carats of diamond valued at over US $ 59.9 lakhs, which were cleared at Customs. 887 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for possession of the goods on the strength of ownership. In the appeal of the Revenue, one of the three respondents is Shri Perez Hender Valmore, who is stated to be an absconder. In any case, today, there is no representation for Shri Perez Hender Valmore despite notice. Another respondent in the Revenue's appeal is DHL (Courier). Again, there is no representation for this party despite notice. 4. The learned Advocate, representing M/s Dalumi Diamonds Manufacturers, submits that DHL has not claimed the diamonds. In this connection, he produces a copy of letter dated 8.3.2011 by DHL addressed to the Commissioner of Customs, which says thus. 'We write to inform you that DHL Express (India) Pvt. Ltd. will not exercise the option of paying fine in lieu of confiscation.' There is no penalty on DHL, who, therefore, is not aggrieved by the Commissioner's order. The contesting respondent in the Revenue's appeal is Dalumi Diamonds Manufacturers. We are told that the correct name of this party is Dalumi Hong Kong Ltd. Appeal No. C/167/2011 was filed by M/s Dalumi Hong Kong Ltd., who are represented today by the learned Counsel. In this appeal, the limited prayer of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onally released to the owner. 9. Learned Counsel has argued with reference to the provisions of Section 113 of the Customs Act that there was no attempt to export the goods and hence the provision is not invocable. He submits that the filing of declaration by Shri Valmore with the courier may, at best, be considered as an act preparatory to export of the goods. However, such preparation would not amount to 'attempt to export' the goods. Attempt to export can be made only subsequent to the preparation. In other words, according to the learned Counsel, the attempt starts after the preparation ends. In this connection, support is claimed from the following decisions: - (i) Ranjit Export Private Ltd. Vs. Collector of Customs, Madras - 1985 (21) ELT 353 (Mad) (ii) Ramakrishna Aggarwal Vs. Collector of Central Excise & Customs, Orissa - 1989 (39) ELT 183 (Ori) (iii) Kashmiri Vs. Collector of Customs - 1992 (57) ELT 284 (Tri) (iv) Sheesh Narain Agarwal Vs. CCE, Nashik - 1995 (76) ELT 207 (Tri). Learned Counsel has relied on the interpretation given in the aforecited cases to the expression 'attempt to export'. In his view, an attempt to export any goods should be reflected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself would confess that he does not know what 'profile manifesting' is. It is, nonetheless, pointed out that the witness was not called upon to explain the meaning of the term. The benefit of doubt should be given to the Courier. We find that the very profile of the issue debated before us was not put across to the lower authority. 12. In so far as Shri Valmore (consignor) is concerned, he filed declaration with the Courier and left the counter. Obviously, his intention was to export the goods through Courier. The question whether the Courier had any intention to export the goods as agent of the consignor should be considered by the Commissioner as it was not examined in the impugned proceedings. 13. If, before the adjudicating authority in de novo proceedings, M/s Dalumi Hong Kong Ltd. can establish that the so-called 'profile manifesting' of the parcel indicated their intention not to export the goods, they can surmount clause (d) of Section 113 of the Act. They have to discharge this burden of proof before the original authority. In so far as clauses (e) and (i) of Section 113 of the Act are concerned, we have no hesitation to hold that these provisions are not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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