Customs, Excise and Gold Tribunal - Calcutta
Shri Abdus Sabur Molla, Jamal Sk, Mintu ... vs Commissioner Of Customs (Prev.) on 5 October, 2005
Equivalent citations: 2006(107)ECC64, 2006ECR64(TRI.KOLKATA), 2006(198)ELT269(TRI-KOLKATA)
ORDER V.K. Jain, Member (T)
1. This is an appeal against the order passed by the Commissioner of Customs (Prev.) vide order No. 13/Cus/Com/Prev./W.B-03 dated 31.10.2003. The brief facts of the case are that on 12.10.2001 the BSF personnel of Singapara BOP searched the godown premises of M/s. New Molla Bastralaya of Dhanirampur synthetic & cotton sarees, misc. readymade garments, bed sheets & buttons and took one person named Shri Jamal S.K. from the said godown premises. The goods along with the apprehended person were handed over to the officers of Jalangi Customs P.U next day. The above goods were seized by the Customs officer of Jalangi Customs, P.U on the ground that such goods have been stored/attempted for illegal exportation to Bangladesh through an unauthorized route in violation of Section 3(1) and 3(2) of the Foreign Trade (Development & Regulation) Act, 1992 as amended read with Section 11 of the Customs Act, 1962 which renders the same liable for confiscation under Section 113(b) and 113(d) of the Customs Act. As per the 110 of the Customs Act 1962, it was also held that the persons concerned are liable for penal action under Section 114 of the Customs Act, 1962. Investigations have been made by the Customs. The show cause notice has been issued and the case has been adjudicated by the Commissioner of Customs (Prev.) vide order referred to the above. The seized goods have been absolutely confiscated under Section 113(b) and 113(d) of the Customs Act, 1962. The various amount of penalty have also imposed upon the appellants.
2. Heard Shri B.N. Chattopadhyay, ld. Consultant for the Appellants. He submits that the Appellant is the proprietor of M/s. New Molla Bastralaya situated at Dhanirampur, Distt. Murshidabad. He holds a Textile License for dealing in textile materials. He also holds a trade license. He runs his business from his shop premises. He further submits that the BSF personnel entered his shop premises on 12.10.2001 at about 4 P.M. The BSF personnel searched the premises without any search warrant and lifted the textile materials from the shop premises forcibly. The BSF personnel did not prepare a search seizure list and did not even give a receipt of the goods seized from the above shop premises. They have also taken one Mr. Jamal Shaikh along with them. The Appellant filed an FIR with the Officer-in-Charge of Jalangi Police Station on the same date. The goods lifted from the shop of the appellant were handed over to the Customs who in turn seized the goods on 13.10.2001. Shri Jamal Sk. was also handed over to the Customs. A statement was recorded from Mr. Jamal SK by the Customs officer wherein he admitted that the BSF personnel forcibly had lifted the goods from the shop premises. It was stated that the shop was situated at a distance of 9/10 K.M. from Indo-Bangladesh Border. The appellant also filed a petition to the Commissioner of Customs (Prev.) detailing with the facts of the case by the BSF personnel. He also submitted the documents and statement from local people who witnessed the incident. He further submits that the BSF has searched the premises without any search authorization and they have not observed any provisions of Section 110 of the CrPC. He further draws to our attention to the Notification No. 63/Customs dated 03.08.1974 wherein the officers of the Border Security officer wherever posted invested with the specified functions of the officers of the Customs. He submitted that it is not known whether the party was headed by a Commandant or the Deputy Commandant or by the Assistant Commandant or it was headed by whom the lower officer of BSF whereas the functions have been customs have been delegated as per the Designation of the BSF people. Search of premises is covered under Section 105 of the Customs Act and this power has been delegated only to the Commandant, Deputy Commandant and Assistant Commandant, in a place where no officer of Customs of the rank of Superintendent of Customs and Central Excise officer and above posted. Nowhere it has been stated in the show cause notice who has headed BSF party and whether they have authority to search the premises. Section 105 of the Customs Act is reproduced below.
Power to search premises- (1) If the Assistant Commissioner of Customs or Deputy Commissioner of Customs, or in any area adjoining the land frontier or the coast of India an officer of Customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorize any officer of Customs to search or may himself search for such goods, documents or things.
(2) The provision of the Code of Criminal Procedure, 1898 (5 of 1898) relating to searches shall, so far as may be, apply to searches under this section subject to the modification that Sub-section (5) of Section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Commissioner of Customs" were substituted.
3. He submits that power to search the premises are restricted only and no officer of the BSF below Assistant Commandant can search the premises. Certain provisions of the CrPC relating to search shall have to apply to the search under the Section and the Sub-section 2 of the above Section specifies that provisions of the CrPC shall also applicable in the case as far as they apply to the searches under this Section. He submits that the BSF party in this case has not followed any provisions.
(1) They were not authorized to search the premises.
(2) They have not followed any provisions of the CrPC.
(3) They have forcibly lifted the goods from the premises along with one person as stated above.
4. In view of this he submits that forcibly lifting of the goods by the BSF is against the law and on this account only there can be no case against the appellants. Notwithstanding of the above contention, he submits that the goods were seized from the shop/godown premises at a distance of 9/10 K.M. from Bangladesh Border and there can be no question of attempt to export. The goods have been confiscated under the provisions of 113 (b) and 113 (d) of the Customs Act which reads as follows:
The export goods shall be liable to confiscation-
(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;
(d) any goods attempted to be exported or brought within the limits of any Customs are for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.
5. He submits that there have been no attempt to export the goods and goods have not been seized from the shop/godown the goods should not liable for confiscation under Section 113(b) and 113(d) of the Customs Act.
He cites the following decisions in this regard:
(i) 2003 (53) RLT 984 (CEGAT)
(ii) (Orissa)
(iii) (Tribunal)
(iv) (Tribunal)
(v) (Tribunal)
6. He further submits that this Tribunal in the case of Abdul Salam Biswas reported in 2004 (176) ELT 258 has held that seizure of textile materials from a shop premises by BSF would not render the goods liable for confiscation under Section 113(b) and 113(d) of the Customs Act inasmuch as there was no attempt to export the goods. He submits that his case is fully covered by the above decision of the Tribunal. He also submits that the confiscated goods are the Indian origin goods and as such this cannot be confiscated unless attempt to export has been proved by the Customs the onus for which lies on the Customs which have not been discharged. In view of above submissions he submits that the goods absolutely confiscation by the Commissioner of Customs is against the law as laid down as the seizure itself was against the law. In view of above he submits that the appellants may kindly be given relief suitably in the matter. He also draws out attention to the show cause notice issued by the Revenue. The statement of Shri Jamal SK incorporated in the show cause notice. He submits that in this statement it has been very clearly stated that the BSF personnel forcibly lifted the goods from the shop premises. He had also taken us to the inventory of the goods.
7. Heard Shri Y.S. Loni, ld. JDR who reiterates the findings of the Commissioner. On the submissions made by the Ld. JDR he had nothing to add except findings of the Commissioner.
8. We have heard both the sides. We find that the provision of the Customs Act are very clear. The Section 105 of the Customs Act have been reproduced above. The BSF has been given this power under certain restrictions and only to be exercised by the officers of the higher rank. Nowhere it has been brought on record whether the BSF exercised this power under the proper authorization and whether they observed the provisions of the CRPC. It is very sad that the law enforcing the authorities themselves do not observe the provisions of law.
9. The Hon'ble Apex Court in the case of State of Maharashtra v. Mohd. Yakub and Ors. reported in 1983 E.L.T. 1637 (S.C.) has defined attempt. They have also made a distinction between preparation and attempt is as follows:
Exports-'Preparation' and 'attempt'-Distinction between-There is distinction between 'preparation' and 'attempt'. 'Attempt' begins where preparation ends. 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.
'Attempt'-How it evolves? -To constitute an 'attempt', first, there must be an intention to commit a particular offence; second, soe act must have been done which would necessarily have to be done towards the commission of the offence and that such act must be proximate to the intended result. The 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.
Words and phrases-'Attempt'-How it culminates in an offence? -What constitutes and attempt' is a mixed question of law and fact depending largely on the circumstances of the particular case. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct. The first stage being when the culprit first entertains the idea or intention to commit an offence, and in the second stage when he makes preparations to commit it and the last stage is reached when the culprit takes deliberate overt steps to commit the offence.
10. In the case Abdul Salam Biswas reported in 2004 (176) ELT 258 (Tribunal-Kolkata) the Tribunal has observed as follows:
We find that the provision of Section 113 of the Customs Act 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 on the situated in the Indian Territory. The appellant 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 the Indian Territory towards Bangladesh so as to arrive at a conclusion that there was an attempt to export the goods to Bangladesh.
11. The above observations equally apply in this case. We do not find any attempt have been made by the appellant to export the goods so as to make them liable for confiscation under Section 113 of the Customs Act.
12. The Tribunal in Kashmiri v. Collector of Customs has explained attempt to export. Export-Confiscation-Attempt to export heroin-Allegation of- 'Attempt to commit an offence-Meaning of-Implies an act beyond the stage of preparation towards commission of offence e.g. moving of contraband goods to the place of embarkation. Seizure of heroine from a house from the airport or the Customs Area, packing of heroin and purchase of air tickets amounting to preparation but no 'attempt' at illegal export. The other case laws cited by the Advocate also defines attempt to export.
13. In this case when the goods have been lifted from shop it is not made clear in the adjudication order how attempt to export has been made by the Appellants. Nowhere it has been mentioned that what preparations have been made by the appellant and how they have attempted to export the goods. The impugned order is silent over this vital aspect.
14. In view above discussions, we set aside the impugned order of the confiscation of goods of Indian origin and imposition of penalty upon the appellants as a result all the appeals are allowed with consequential relief to the appellant.