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2015 (10) TMI 2394 - CESTAT KOLKATA

2015 (10) TMI 2394 - CESTAT KOLKATA - 2016 (335) E.L.T. 548 (Tri. - 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 .....

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own to have been notified as specified goods under Section 111 - No evidence on 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 .....

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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 ₹ 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 bla .....

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tercepted goods were being transported to Manjharia godown for handing over to 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 Sec .....

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he 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 b .....

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eparation which is not an offence. (i) State of Maharashtra Vs. Mohd. Yakub & 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 issu .....

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cation of goods attempted to be improperly exported etc.: The following export 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 .....

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n 2 (19) of the Customs Act, 1962 as follows: "(19) 'export goods' 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 tha .....

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ll come within the domain of 'preparation' and not an 'attempt' 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 defini .....

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ions 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 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 i .....

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e is no other statement from any person in these proceedings that the pulses under 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 km .....

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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 goods from Indian Territory towards Bangladesh, so as to arrive at a .....

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