TMI Blog2016 (5) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. Appellants did not cross examine the persons whose statements were implicating them. There is no reason to brush aside the statement of Smt Soni Jaiswal, wife of Sh. Umeshwar Prasad Jaiswal to the effect that the seized goods were meant for export to Nepal. Further the words dutiable or prohibited existing in Sec-113 (c) have been deleted with effect from 14.05.2003, making the provision applicable to any goods brought near to the land fromties for the purpose of being exported. Therefore, on the basis of the existing evidences in these proceedings the activities of the appellants have to be considered as an “attempt” to export and not a simple “preparation.” This bench, therefore, does not find it proper to interfere with the orders passed by the first appellate authority which is based on cogent reasoning. - Decided against the appellant - Appeal No. C/109-113/2011 - Order No. FO/A/75829-75833/2015 - Dated:- 18-12-2015 - SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner : Shri N. K. Choudhary, Advocate For the Respondent : Shri S. Nath, AC, (AR) ORDER PER SHRI H.K.THAKUR These appeals have been filed by the appellants against OIA No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) West Bengal Vs Kamala Rangan Saha [1990 (05) LCX 0087] (vi) Sashmiri Vs CC [1991 (00) LCX 0033.] 2.3 After making the bench go through some of the paragraphs of above case laws it was argued by the Learned Advocate of the appellants that goods seized from the godowns can at best be a preparation but can not be said to be an act indicating attempt to export the same out of India. That the same appellate authority when working as Adjudicating Authority, under similar circumstances dropped the case of other appellants under OIO No. 5-CUS/CC/MTH/2009 dt 18/5/2009. 3. Sh. S. Nath AC (AR) on the other hand relied upon the following case laws in support of the argument that intention/preparation to export paddy/Rice in the present proceedings is sufficient to confiscate the goods and impose penalties upon the appellant. (i) Manilal Bhanabha Patel Vs UOI [1992 (60) ELT 99 (Guj)] (ii) Zenith Drugs Alled Agencies Vs CC, Shillong [2003 (160) ELT 600 (Tri.-Kolkata)] 3.1 Learned AR made the bench go through Paras 10, 15, 16 18 to 21 of the case law Manilal B. Patel Vs UOI (Supra) to argue that bringing of such huge quantity of paddy/Rice close to the border itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Zenith Drugs Allied Agencies Vs CC, Shillong (Supra), relying upon Gujarat High Courts order in the case of Manilal Bhanabhai Patel Vs UOI (Supra) held as follows in Para-15 :- 15.To invoke the provisions of Section 113, it must be shown that there was an attempt on the part of the noticee to export the prohibited goods through un-authorised manner. Such an attempt implies an act beyond any stage of preparation and towards the commission of offence. When the huge quantity of medicines which are not capable of being consumed in that area and the fact that the appellant, M/s. Sree Ma Drugs does not have proper licence or are not authorised stockist, is indicative of the act of attempt on the part of the appellants to export the same to Bangladesh. Attempt does not mean, as argued by ld. Consultant that the goods should have been in the process of being transported to Bangladesh. The entire evidence has given rise to only one inevitable conclusion that the consignment in question was brought near the border area with an intention to export the same. In terms of provisions of Section 113(c), any dutiable or prohibited goods brought near the land frontier for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the town. Therefore, the huge stock of paddy stored is meant for smuggling across the border to Nepal where there is large demand for rice. Hence, circumstantial evidence goes to prove beyond doubt that the seized paddy are meant for smuggling two Nepal. The attitude of the Noticees No. 1 to 7 in responding to the summon issued to them at the time of seizure of the goods also shows that they were hesitant to cooperate with the investigating officers, they also gave some contradictory statements which go to prove that their statements were after thought. The documents produced in support of their claim to the seized goods are also fabricated and none appears genuine. 4.5 In the present proceedings there are two statements of Sh. Vijay Kumar Bajaj Smt Soni Jaiswal that the seized goods were meant for illegal export to Nepal. It is also observed that there are documentary evidences to the effect that on earlier occasions also appellants have illegally exported similar goods to certain Rice Mills in Nepal on tractor trolleys. There are also documentary evidence to that effect collected by investigation during search, as indicated in Para 1.02 of OIO No. 47-CUS/ADC/DRI/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of smuggled goods. Further considering the provision of sub-section 113(b) and (d) it is apparent that it deals with any goods attempted to be exported while sub-section 113(c) provides for bringing of goods near the land frontier or the coast of India for the purpose of being exported. Hence under sub-section 113(c) there is no question of establishing ingredient of attempt to export. The authority is required to establish that the person has brought dutiable or prohibited goods near the land frontier or coast of India for the purpose of it being exported illegally. If goods are brought near the land frontier or coastal area, whether they were brought for the purpose of being exported would depend upon the intention of the person concerned. That intention can be inferred from the circumstances of the case. 18. Further in these type of cases of smuggling of goods the activity is done in a clandestine or stealthy manner. Therefore, it would be difficult or rather impossible to have direct evidence to establish that goods were brought for the purpose of being illegally exported. Still however, when there is no direct evidence, from the circumstantial evidence a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to other kindred principles, no less fundamental, on universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake . El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Elatch v. Archer (1774) 1 Cowp 63 at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the facts in issue. Broadly the main circumstances are : (1) the conduct of the petitioner of not claiming the possession of the huge quantity of silver for a period of two months; (2) highly improbable story put up by him that he was taking the silver bars to Navsari but because of breakdown of the truck he brought it at village Tukwada; (3) no documentary evidence produced before the authority to show that it was being transported by a truck and that because of breakdown of the truck, the goods were taken to village Tukwada; (4) he brought the silver bars in jeep car instead of taking to Navsari, and (5) no documentary evidence or any bill was produced before the authority that petitioner was lawfully possessing 2770 kgs. of silver bars. The aforesaid circumstances coupled with the statements of Manibhai Desai and Bhagwanji Desai, in our view leaves no doubt for arriving at a conclusion that the silver bars were kept there for being exported, that is a place other than customs station. In any set of circumstances, it cannot be said that the order passed by the Additional Collector is illegal, perverse or devoid of any sense or contrary to rules of natural justice. 4.7 Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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