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2016 (9) TMI 1121 - CESTAT KOLKATA

2016 (9) TMI 1121 - CESTAT KOLKATA - TMI - Confiscation of empty bags under Section 118(b) of the Customs Act, 1962 - huge quantities of sugar stored in the house of one Amal Mali for illegal export to Bangladesh - search of premises on seizure of sugar/ empty bags - restriction on sale/export of sugar came into operation only by a letter dated 10/5/2006 issued by Ministry of Consumer Affairs Food and Public Distribution - Held that: - even intention to export and preparation alone are not suffi .....

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of the sugar under Section 113 of the Customs Act, 1962. These provisions are applicable only when any prohibited goods are brought inside a customs area for export and not to local movement of goods in India, outside customs area or goods stored in a godown. Sugar is also not a notified/specified category of goods under the Customs Act, 1962 which cannot be brought near the international border - confiscation of sugar and imposition of penalties set aside. - Confiscation of empty bags under .....

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by the Adjudicating Authority. Such confiscation of empty gunny bags is bad in law - confiscation of empty bag is set aside. - Appeal allowed - decided in favor of appellant. - Appeal Nos. C/53, 56, 58, 61, 59, 60, 57, 54/2008 - Order No. FO/A/76061-76068/16 - Dated:- 23-9-2016 - Shri H. K. Thakur, Member (Technical) Sk. A. Chakraborty, Advocate appeared for the Appellant Sri S. K. Naskar, AC(AR) for the Respondent ORDER Per Shri H. K. Thakur 1. These appeals have been filed by the appellan .....

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iscated sugar was allowed redemption by imposing a redemption fine of ₹ 20 lakh which is to be appropriated by encashment of bank guarantee furnished by appellant M/s. Laxmi Narayan Udyog Pvt. Ltd., Kolkata (Main Appellant). Penalties of ₹ 5.00 lakh have been imposed upon appellant M/s. Laxmi Narayan Udyog Pvt. Ltd. and ₹ 2.00 lakh each upon appellants Shri Indrajit Jash (Director of M/s Laxmi Narayan Udyog Pvt. Ltd.) and Shri Ranjit Kumar Kundu under Section 114 of the Customs .....

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pon by the department. That on that basis officers searched certain premises and seized sugar/empty sugar bags as detailed in paragraph-2 of the OIO dated 30.11.2007. It is the case of the Learned Advocate that no documentary evidence exists on record to indicate that quantity of sugar seized and lying in godowns was intended for illegal export to Bangladesh. That it was meant for licitly exporting the same for which main appellant was making efforts to obtain necessary permissions from the appr .....

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ws:- (i) In the case of Oudh Sugar Milks Ltd.-vs.-UOI 1987 E.L. 1. JI72(SC). (ii) State of Kerala-vs.-M.M.Mathew 1978 (42) STC 348 (SC). (iii) A.K.Saba-vs.- Commissioner 2001(136)ELT 303 (Tri.-Kol) (iv) 1991 (35) ECR 276 (Tri.-ERB) 1999(49) ELT 452 (T). 2.1. It is also the case of the main appellant that the seized sugar was never meant for illegal export and no illegal attempt to export can be attributed on the part of the main appellant. That main appellant was corresponding with the departmen .....

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umar Saha-vs.-Commissioner of Customs (Prev.), West Bengal[2003(161) E.L.T.1021(Tri.-Kolkata)]. 2.2. Appellants also relied upon Final Order No.A-375/Kol/2009 dt. 15.07.2009, in the case of Commissioner of Customs(Prev.), W.B.-vs.-Shri Bipad Bhanjan Sarkar (Appeal No.381/08), passed by this bench were under similar facts 1000 quintals of sugar was not considered to be smuggled. 3. Shri S.K.Naskar AC(AR) appearing on behalf of the Revenue argued that Shri Yunus Mondal in his voluntary statement i .....

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/Sugar/MLD-AU/Cus/06/392 dated 27.04.2006. Learned AR made the bench go through paragraph-6 of OIO dt. 30.11.2007 and strongly defended the adjudicating authority s OIO dt. 30.11.2007. 4. Heard both sides and perused the case records. It is the case of the Revenue that 1866 quintals of sugar seized from six godowns as per paragraph-2 of the OIO dated 30.11.2007, were meant for illegal export to Bangladesh. It is observed that paragraph-2 of the OIO dt. 30.11.2007 refers to the statement of one S .....

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ed 30.11.2007 are thus only hearsay evidences and such hearsay evidence alone cannot be accepted as reliable evidence for deciding the issue against the appellants. That is the law laid down by the courts in case laws relied upon by appellant as listed in paragraph-2 above. 4.1. This bench in the case of Commissioner of Customs(Prev.), W.B.-vs.-Shri Bipad Bhanjan Sarkar (Supra) held as follows while upholding OIA No.Prev./Cus-145/2008 dated 05.09.2008 where confiscation of 1000 quintals of sugar .....

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l is dismissed. 5. It is further observed that nothing is available in the case records whether Shri Yunus Mondal conveyed in his statement whether Shri Amal Mali is also keeping other stocks of sugar for illegal export to Bangladesh. There is also no reliance on the statements of six house owners who mentioned that Ranjit Kumar Kundu told them that sugar is meant for export. There is no denial by the main appellant that seized sugar was meant for export. It is appellant s case the sugar was mea .....

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in appellant, as recorded in paragraph-6 of the OIO dt. 30.11.2006 are also not admissions. Rather existence of a demand draft dt. 28.04.2006 of ₹ 38,53,290.00 in the name of M/s. Balrampur Chini Mills Ltd. also indicate that before the date of seizure main appellant was in the possession of legally procured sugar. It is observed from the findings of Adjudicating Authority that only as per a letter dt. 10.05.2006 from Ministry of Consumer Affairs, Food and Public Distribution, sale of suga .....

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as meant for clandestine export to Bangladesh. On the contrary main appellant had documentary evidence to confirm that sugar has been acquired licitly and efforts were being taken to seek export permission from the appropriate authority as the restrictions were imposed only with effect from 10.05.2006. 5.1. On the issue of attempt and preparation this bench in the case of Babban Khan vs.- Collector of Customs(Preventive)(Supra) held as follows in paragraph-7:- 7. In this case, even if all the al .....

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t an opportunity to export the same during this period of six months. In this background, the explanation given by the appellant that he had been waiting for the revival of the Treaty and for that purpose kept the goods, in the godown cannot be disbelieved. The probabilities of the case are in favour of this explanation furnished by the appellant. Even otherwise, the goods were lying in the godown under lock and thus there was no movement of the same towards Nepal. Therefore, it cannot be said t .....

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if any goods are seized the same has to be returned to the owner, or where such owner is not known, the person from whose custody such goods have been seized. Admittedly, the goods were seized from the custody of the appellant. Therefore, even if the owners had not claimed the goods, when the goods are not confiscable in law, the same are to be returned to the appellant from whose possession the same are seized. The reason is that the owner of the godown had stated that the appellant had taken i .....

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ich 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 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 t .....

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e 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 preparation ends. In sum, a person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such .....

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roximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. For instance, .....

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e truck was driven up to a lonely creek from where the silver could be transferred into a sea-raring vessel was suggestive or indicative, though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course of intercoastal trade. But, the circumstance that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of .....

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al export on the part of the appellants. In the case of Ram Krishna Dutta vs.- Commissioner of Customs, (Prev.), Kolkata (Supra) even when sugar was moving in a truck it was held by this bench that there is no attempt to export sugar illegally when documents of legal acquisition are made available. Any violation of a procedural requirement under Sugar (Control) Order 1966 that too for the period after 10.05.2006, for local movement/ control of sugar, cannot be made as the basis for confiscation .....

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