TMI Blog2015 (10) TMI 2333X X X X Extracts X X X X X X X X Extracts X X X X ..... come into operation if goods are brought into Customs area - Order of confiscation and penalty liable to be set aside - Decided in favour of Appellant. - Appeal No.CA-75214/15 - ORDER NO.FO/A/75571/2015 - Dated:- 18-9-2015 - Shri H.K.Thakur, Member(Technical) For the Petitioner : Shri A.C.Tikadar, Consultant For the Respondent : Shri M.Singh, Addl.Commr.(AR) ORDER Per Shri H.K.Thakur. This appeal has been filed by the appellant against Order-in-Appeal No.67/CUS(A)/GHY/14 dated 25.11.2014 passed by the Commissioner(Appeals) of Customs, Central Excise Service Tax, Guwahati as first appellate authority. Under this order first appellate authority has upheld Adjudication Order-in-Original No.13/ACG/CUS/14-15 dated 08.07.2014 confiscating 54.50 Kgs. of Agarwood of a plant Acquilaria malaccensis, valued at ₹ 4,90,500/-, upon the appellant under Section 114 of the Customs Act,1962. 2. Shri A.C.Tikadar (Consultant) appearing on behalf of the appellant argued that appellant Md.Raju Hussain was incepted by the officers of DRI on the check-in-counter of Indigo flight at L.G.B.I.A., Guwahati on 18.01.2014 based on an intelligence that appellant is carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (Chapter-12) of the Export Policy 2002-07 export of Agarwood is prohibited. Learned AR, therefore, strongly defended the orders passed by the lower authorities. Learned AR also made the Bench go through statement dated 19.01.2014 of the appellant to argue that circumstantial evidences strongly suggest the seized Agarwood was meant for illegal export to Bangkok. 4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether Agarwood seized from the appellant can be confiscated under Section 113 and whether penalty can be imposed upon the appellant under Section 114 of the Customs Act, 1962 in view of the factual matrix of this case. Relevant Section 113(3) of the Customs Act, 1962 is reproduced below :- SECTION 113 (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; 4.1 As per the above provisions it has to be established by the Revenue that Agarwood was attempted to be exported to Bangkok, as the seized goods are neither notified under Section 123 nor s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in (1962) 2 SCR 241 appearing in para 13 of the judgment was as under :- 13. Well Outlines of Criminal lawdefined then, what is an attempt Kenny is his attempt to commit a crime as the last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control. This definition is too narrow. What constitutes an attempt is a mixed question of law and fact, depending largely on the circumstances of the particular case. Attempt defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the ideas or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such an act or acts were deliberately done, and manifest a clear intention to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his digest of Criminal Law, art. 50 defines an attempt as follows :- An act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case. The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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