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TMI Blog2015 (10) TMI 2394X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority set aside Order-in-Original No.131-CUS/ADC/MTH/11 dated 8/9/2011 regarding confiscation of pulses/cereals, truck No. BR-06G/7745 and imposition of penalties. 2. Shri S.K. Naskar, A.C. (A.R) appearing on behalf of the Revenue submitted that on the basis of an information truck No. BR06G/7745 was intercepted on 2./7/2010. That as per the information the assorted pulses/cereals carried in the above truck were meant for illegal export to Nepal. That on interception the truck was found to contain Rahal Dal, Mung Dal & Chana Dal totally valued at Rs. 6,83,290/-. That during the search of the truck and the driver an Invoice No. 5 of M/s. Prasad Trading company, Motihari and Form -D-VIII, duly filled with Bihar VAT, were found alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at driver of the vehicle Shri Mukesh Kumar Mishra has stated that Ramchandra Prasad was used to sending the goods to Nepal through vehicles which made it clear that the impugned goods were meant for export to Nepal. 3. Shri B.N. Chattopadhyay (Consultant) and Shri Debaditya Banerjee (Advocate) appeared on behalf of the Respondents. Shri Chattopadhyay argued that the confiscated goods were only intended to be transported to Manjharia Godowns within the territory of India and were never intended /attempted to be exported to Nepal. That the only evidence of the Revenue is based on the statement of Shri Mukesh Kumar Mishra, Driver of truck No. BR-06G/7745, which is only a hearsay as he has never stated to have transported goods on earlier occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or a customs airport appointed for the loading of such goods; (b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause (c) of Section 7 for the export of such goods; (c) any goods brought near the land frontier or the coast of India or near any bay,gulf,creek or tidal river for the purpose of being exported from a place other than a land custom station or a customs port appointed for the loading of such goods; (d) any goods attempted to be exported or brought within the limits of any custom 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ides 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 penulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11H (e) of the Customs Act, 1962 and pulses have not been shown to have been notified as specified goods under Section 111 of the Act. 4.3. Learned Consultant has also relied upon the case law of Abdus Salam Biswas Vs. CC (P) , Kolkata (supra) where this Bench held as follows in para 11.1: "11.1 We find? that the provisions of Section 113 provide for confiscation of the goods for an attempt to export, the same. In the present case the goods were admittedly seized on the ground that the same were lying in the shop-cum-godown premises situated in the Indian Territory. The appellants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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