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Commr. of Customs, Patna Versus Shri Ram Chandra Prasad And Others

2015 (10) TMI 2394 - CESTAT KOLKATA

Confiscation of goods Imposition of penalties Revenue contended that pulses carried in trucks was meant for illegal export to Nepal and goods were correctly confiscated under Section 113(d) and vehicle was correctly confiscated under Section 115 Goods were also prohibited as per were also prohibited by DGFT Notification No. 35/2009-2010 Respondent contended that goods were not intended to be exported to Nepal and were being transported to Manjharia Godowns within the territory of India a .....

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record that owner of truck had knowledge of smuggled nature of goods Decided against Revenue - Customs Appeal Nos. : C/197/12,C/198/12 & C/199/2012 - ORDER NO : FO/A/75561-63/15 - Dated:- 11-9-2015 - SHRI H.K. THAKUR, TECHNICAL MEMBER For the Petitioner : Sri S.K. Naskar, A.C. (A.R.) For the Respondent : Sri B.N. Chattopadhyay, Consultant & Shri Debaditya Banerjee, Advocate ORDER Per : SHRI H.K. THAKUR These appeals have been filed by the Revenue against Order-in-Appeal No. 89-91/PAT/Cu .....

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r 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 ₹ 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 alongwith 18 blank invoices of M/s. Prasad Trading Co. and blank D-VIII forms. That as per Invo .....

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Krishnajee Munshi working for Ram Chandrajee. That Krishnajee sends the pulses to Nepal on Tractors through off routes/porous border. 2.1 It is the case of the Revenue that the goods were meant to be exported to Nepal and were correctly confiscated by the Adjudicating authority under Section 113 (d) of the Customs Act, 1962 and penalties have been correctly imposed. That vehicle also is correctly confiscated under Section 115 of the Customs Act, 1962. Learned A.R.also made the Bench go through p .....

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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 stat .....

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p; others [1983 ELT (1637) (SC)] (ii) Babban Khan Vs. C.C. (P) [1992 (09) LCX 0064] 3.1 It was strongly argued by the Learned Consultant that the goods were not intercepted while moving from Manjharia Godown towards Nepal border and that the act of the Respondent in the present proceedings cannot be said to be an attempt to export pulses to Nepal. Learned Consultant also relied upon the following case laws on the issue : (i) Abdus Salam Biswas Vs. CC (P) , Kolkata [2004 (176) ELT 258 (Tri-Kolkat .....

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goods shall be liable to confiscation:- (a) any goods attempted to be exported by sea or air from any place other than a customs port 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 .....

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means any goods which are to be taken out of India to a place outside India". 4.1 The language of Section 113(d) and Section 2 (19) of the Customs Act convey that only those goods which are attempted to be exported are liable to confiscation . There is no evidence on record that the goods under consideration were meant for export to Nepal. Only a statement is made by the truck driver Shri Mukesh Kumar Mishra that Shri Ram Chandra Prasad of Motihari sends rice/pulse to one Mukeshjee in Nepa .....

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as per the case law of State of MaharashtraVs. Mohd. Yakubs and others (supra). In para 13 of this case law Apex Court held as follows: 13.Well then, what is an attempt Kenny is his Outlines of Criminal law defined 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 .....

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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 offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241, there is a distinction between preparation and attempt . Attempt beings where preparat .....

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der consideration were to be exported to Nepal, except intelligency/information of the departmental officers which has to be considered as a 'heresay' and cannot be taken as an evidence. Accordingly, it is held that the impugned pulses were not liable to confiscation under Section 113 (d) of the Customs Act, 1962 as these were moving within the territory of India. Argument of the Revenue that area within 50 kms. of the Border is 'specified area' as per Section 114 of the Customs .....

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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 goods from Indian Territory towards Bangladesh, so as to arrive at a conclusion that there was an attempt to export the goods to Bangladesh. Initial .....

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