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2015 (10) TMI 2333 - CESTAT KOLKATA

2015 (10) TMI 2333 - CESTAT KOLKATA - 2016 (331) E.L.T. 595 (Tri. - Kolkata) - Export of prohibited goods - Agarwood of a plant Acquilaria malaccensis - 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? - Appellant explained the licit acquisition of agarwood and stated that he was carrying it to Mumbai for local sales and not for taking to Bangkok - No valid visa with a .....

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gkok - Seized goods are also neither notified goods nor specified goods under Customs Act, 1962 and prohibitions under Export Policy will 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) O .....

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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 carrying Agarwood for export to Bangkok. That Appellant was found to have inter alia 54.50 Kgs. of Agarwood in his baggage along with a Tax Invoice No.278 dated 17.01.2014 of M/s.Assam Perfumery Su .....

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t acquisition of agarwood as per the accompanying documents and also stated that he was carrying the goods to Mumbai for local sales there. That the goods were not meant for taking to Bangkok as he was having no valid visa for Bangkok in his passport. That after detailed investigation, issue of show cause notice and following the principles of natural justice Order-in-Original dt.8.7.2014 was passed against the appellant. 2.1 Learned Consultant of the appellant argued that there is no evidence o .....

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), Kol, W.B. [2008 (222) ELT 295(Tri.-Kolkata)] (ii) Debdas Adhikari & Dinabandhu Adhikary v CC(Prev.), Kol, W.B. [2008 (222) ELT 299 (Tri.-Kolkata) 3. Shri M.Singh, Addl.Commr.(AR) appearing on behalf of the Revenue argued that appellant on earlier occasions has also travelled to Bangkok twice as per his passport. That he has also earlier taken two consignments of Agarwood to Mumbai which must have been taken to Bangkok. That appellant could not produce any evidence of legal acquisition of .....

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ggest 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 .....

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peal dated 08.12.2014 has only upheld the confiscation on the basis of illegal acquisition of seized goods and has not given any findings as to how seized goods were meant for export. There is no evidence on record that appellant during earlier two visits to Bangkok carried Agarwood though an attempt was made by investigation as per a Mo.17 contained in the statement dated 19.01.2014 of the appellant. There was no valid visa in the passport of the appellant for going to Bangkok. Circumstantial p .....

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pex Courts decision in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663], held as follow in 4.1 to 4.3:- 4.1There was no interception at all by the Customs Authorities in the notified area under Section 7 of the Customs Act, 1962. The currency in question were not found in notified area nor notified goods calling for discharging burden of proof under Section 123 of the Customs Act by the Appellants. Furthermore, the intention of all the noticees were very clear from the show cause .....

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was at all, that does not amount to attempt. Meaning of the term attempt as observed by Hon ble Supreme Court in the case of State of Maharashtra v. Mohd. Yakub & Ors. reported in 1983 (13) E.L.T. 1637 = AIR 1980 SC 1111 relying on the judgment of Abhayanand Mishra v. State of Bihar reported 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 .....

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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 commit the off .....

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h an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. 4.2 Furthermore, the attempt has to result with either futility or success of the smuggle. This aspect should have been examined on the light of evidence and appreciated by the authorities below and brought out very clearly the charge proving the manner how attempt was made. Three learned judges of the Honble Supreme Court in the case of Malkiat Singh .....

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rt, while holding that no offence has been committed by the appellant nor was there an attempt to commit an offence analysed the question and expressed their opinion in the following terms : It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt t .....

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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 be .....

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an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 .....

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ut to the very act of mischief itself with live link and nexus. 4.3 In Asgarali Pradhantha v. Emperor [(1934) ILR 61 Cal. 54], a Bench of the High Court at Calcutta, consisting of Lord-Williams and Mcnair, JJ., chose to sum up the law in India on the aspect of attempt in the following terms :- So far as the law in India is concerned, it is beyond dispute that there are four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit and, if the third stage is .....

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