TMI Blog2016 (9) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... control of sugar, cannot be made as the basis for confiscation 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 Section 118(b) of the Customs Act, 1962 - Held that: - goods, if brought in packed form into a customs area then such packages are liable to confiscation. Here, neither the seized goods are contained in packages nor brought into customs area for export. There is also no evidence to indicate that exported goods, if any, were once contained in the empty gunny bags seized by the department. Provisions of Section 118(b) of the Customs Act, 1962 are not applicable to the empty gunny bags confiscated by the Adjudicating Authority. Such confiscation of empty gunny bags is bad in law - confiscation of empty bag is set aside. Appeal all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities from April, 2001 itself which is much before the date of seizure. That 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. Learned Advocate made the bench go through paragraphs on internal page-13 of the OIO dated 30.11.2007. That the entire case of the Revenue is based on presumption, assumption and surmises which has been held to be unacceptable as per following case laws:- (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 departments in April, 2006 to get permissions for export restriction for which were introduced in 2006 itself. Learned Advocate made the bench go through paragraph-13 of the OIO dt. 30.11.2007 and rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stored in a godown was set aside:- 5. I find that in the impugned order Commissioner (Appeals) held that no evidence whatsoever has been adduced to show that the confiscated sugar was being attempted for illegal export. The sugar was merely stored in godown and storing is not synonymous with attempts to illegal export to Bangladesh. In view of these facts and as there is no evidence on record that the sugar is being smuggled to Bangladesh, I find no infirmity in the impugned order and the appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that he had kept these goods in the godown for being exported to Nepal only when the India-Nepal Treaty is revived. It is now an admitted fact that the goods were lying in the godown for a period of six months. If actually the appellant wanted to export the goods, it cannot be said that he would have kept it for a long period of six months and he never got 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 that the stage of attempt to export the goods had reached in this case. Even if the case of the department is accepted, at best it amounts to a preparation. That being so, the confiscation of the goods in question and imposition of penalty cannot be justified. But the learned J.D.R. Shri B.B. Sarkar contended that there are other claimants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation 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 an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. 31. Let me now state the result of the search and research : In order to constitute an attempt first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate, to the intended result. The measure of proximity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods under the Customs Act, 1962 which cannot be brought near the international border. 6. In view of the above there is no merit in the confiscation of sugar and imposition of penalties upon the appellants which are required to be set aside. 7. So far as confiscation of seized 279 empty gunny bags is concerned it is observed that such confiscation has been ordered under Section 118(b) of the Customs Act, 1962 which is reproduced below: 118. Confiscation of packages and their contents. (b) Where any goods are brought in a package within the limits of a customs area for the purpose of exportation and are liable to confiscation, the package and any other goods contained therein shall also be liable to confiscation. 7.1. As per the above provisions goods, if brought in packed form into a customs area then such packages are liable to confiscation. In the present proceedings neither the seized goods are contained in packages nor brought into customs area for export. There is also no evidence to indicate that exported goods, if any, were once contained in the empty gunny bags seized by the department. In view of the above provision of Section 118(b) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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