Customs, Excise and Gold Tribunal - Tamil Nadu
Penguin (Mft) International vs Collector Of Customs on 29 July, 1987
Equivalent citations: 1988ECR205(TRI.-CHENNAI), 1988(35)ELT388(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. For the reasons stated in the Restoration application; the order of Tribunal dated 27-5-1987 dismissing the appeal for default is set aside and the appeal is restored for disposal on merits.
2. The appeal is directed against the order of the Collector of Customs; Cochin; dated 26-9-1986; imposing a fine of Rs. 25;000/- in lieu of confiscation of 53 packages of general merchandise totally valued at Rs. 96;955/- under Section 125 and a personal penalty of Rs. 10;000/-under Section 114 of the Customs Act; 1962, the 'Act' for short.
3. Proceedings were instituted against the appellant by the authorities on the ground that 53 packages of general merchandise concerned in this case were attempted to be exported in contravention of law to South Africa rendering the goods liable to confiscation under Section 113(d) of the Act with consequential penal liability and the proceedings thus instituted finally resulted in the present impugned order.
4. Jamadar; the learned Counsel submits that in respect of goods in question once a "Let' Export" order is granted by the competent authority the goods would become exported goods and hence not liable to be confiscated as "goods attempted to be exported" in terms of Section 113(b) of the Act. The learned counsel; therefore; submitted that the impugned order of confiscation and penalty is not sustainable in law. It was further urged that the inculpatory statement recorded from the appellant in respect of the goods in question on 3-7-1985 and 4-7-1985 has no evidenciary value as the same was neither voluntary nor true and was retracted on 18-7-1985. The learned counsel also contended that no reliance could be placed on the statement of Rajan T. 3hangiani; Marketing Manager of M/s. Arebee Shipping Company Private Limited; since the same is general and vague and does not particularly implicate the appellant. The learned counsel further submitted that merely because the goods .were found along with other goods in a container the destination of which was South Africa; it would not follow as a logical corollary that the appellant's goods also were meant to be exported to South Africa in contravention of law. Heard K.K. Bhatia; the learned S.D.R.
5. The fact that the goods in question belonging to the appellant were sought to be exported during May & June 1985 is admitted and is not in dispute. The only plea of the learned counsel is after the Customs authorities had granted 'Let Export' after examination of the goods and scrutiny of all requisite export documents in terms of Section 51 of the Act; the goods cannot be characterised as goods attempted to be exported because export has become complete. The learned counsel also places reliance on the judgment of the Division Bench ruling of the Madras High Court in the case of Lucas TVS; Madras v. Assistant Collector of Customs; Madras and Ors. reported in 1987 (28) E.L.T. 266. The plea of the learned counsel; in our opinion; is not legally sustainable. The moment the goods are attempted to be exported out of India in contravention of law; the offence becomes complete in terms of Section 113(d) rendering the goods liable to confiscation with consequential penal consequences on the person concerned in terms of Section 114 of the Act; Even assuming for the purpose of arguments that the goods were successfully exported to South Africa even though the goods may not be available for confiscation that would not wipe out the penal liability of the person concerned if the charge is established under law. In this context; we would like to refer to the ruling of the Full Bench of the Calcutta High Court in the case of Euresian and Chemicals Limited and Ors. v. Collector of Customs and Ors. reported in 1980 E.L.T. 38 (Cal). In dealing with a similar contention; the Calcutta High Court has observed that ;
"Section 113 provides liability of the goods to confiscation in case of any violation of the prohibition imposed under Section 11 of the Act and Sections 11 provides for personal penalty for those whose acts or omissions render the goods liable to confiscation under Section 113. To construe the said sections to mean t hat Section 114 can only be attracted-when the goods are attempted to be exported and will have no application when goods have in fact been exported will defeat the purpose and object for which the said provisions have been introduced. The submissions that the legislature has so intended by using the words 'attempt to export' in Section 113(a); (b) and (d) and the analogy of the offence of attempt to commit suicide given in this connection are; in our opinion; misleading and devoid of merit. An attempt to commit suicide is indeed an offence and they act of committing suicide resulting from the successful attempt may not be considered to be an offence. This is so for the simple reason that once a person attempting to commit suicide succeeds in his attempt he places himself beyond the reach of law and no punishmer. is intended to be inflicted on the dead person or his heirs and legal representatives by imposing any fine or penalty; as they may in no way be liable or responsible for the said act. As we have earlier observed the liability of the goods to confiscation arises under Section 113(d); as soon as the goods are attempted to be exported and the attempt to export the goods necessarily precedes the actual export of the goods. Goods become liable to confiscation as soon as the attempt is made. There is no provision in the Act to suggest that this accrued liability is wiped out or extinguished with the exportation of the goods. It may be that after the goods had in fact been exported the liability of the goods to be confiscated may not be enforceable by actual confiscation of the goods. Personal penalty of any person who; in relation to the goods; does or omits to do any act which act or omission renders the goods liable to confiscation under Section 113 or abets the doing or omission of such an act has been provided in Section 114. This provision is attracted as soon as the goods incur the liability to confiscation under Section 113 and such liability; as we have earlier- held; arises when the goods are attempted to be exported contrary to any prohibition. It is to be noted that at the time when the goods are sought to be exported they are undoubtedly export goods within the meaning of Section 2(19) of the Customs Act. The liability of personal penalty provided in Section 114 of the Act; which arises with the accrual of the liability of the goods to confiscation under Section 113 of the Act at the stage of the attempt to export the said goods; clearly remains and the said liability is capable of enforcement. In the case of illegal export of any goods contrary to prohibition the effect may be that the liability of the goods to confiscation which arises and accrues may not be capable of enforcement but the personal liability which arises with the accrual of liability of the goods to confiscation can be enforced and by enforcement of the personal liability the offender can still be brought to book and this kind of offence may be checked. We must; therefore; hold that by virtue of Section 23A of the Foreign Exchange Regulation Act; 1947 the provisions of Sections 113 and 114 of the Customs Act; 1962 are attracted; when there is contravention of Section 12(1) of the Foreign Exchange Regulation Act; 1947 in relation to goods which had in fact been exported."
In the present case; the goods were very much available for confiscation and confiscation was effected. In our opinion the ratio of the ruling of the Division Bench of the Madras High Court referred to by the learned counsel has no application at all to the facts and circumstances of this case. The Division Bench in that case was merely concerned with the question as to when export or import takes place for purposes of drawback claims. The Division Bench of the Madras High Court in the said ruling did not consider the question of confiscability of goods attempted to be exported in contravention of law and the consequential penal liability of the person concerned with reference to the present plea urged before us and set out above.
6. Having held that the goods which were attempted to be exported in contravention of law are liable for confiscation; the next question that would arise for consideration is whether there is any evidence on record to indicate that the goods in question were indeed as a matter of fact attempted to be exported to Sough Africa by the appellant in contravention of law. In this connection; we would first like to refer to the inculpatory statement recorded from the appellant on 3-7-1985 and 4-7-1985. We have gone through the statement carefully and we have no hesitation to hold that the appellant has clearly admitted the fact that the goods were meant for South Africa even though the destination in the shipping bill was shown as Maputo. The modus operandi of the illegal export of the goods to South Africa in contravention of law has been more vividly given by the appellant in the statement. We; therefore; hold that the statement is voluntary and true and would merit acceptance. The plea of the learned counsel that the statement has no evidenciary value since it was retracted is also not acceptable. . No complaint was made to the judicial Magistrate at the time of remand that the statement in question was brought into existence under threat or coercion. Even though admittedly the appellant was released on bail on 9-7-1985; there was no immediate retraction of the inculpatory statement and only belatedly the appellant retracted the statement for the first time on 18-7-1985. No explanation has been given for such belated retraction. In the circumstances we reject the retraction; as belated and resorted to in a bid to extricate himself from the clutches of law. We also find sufficient corroboration for the inculpatory statement of the appellant from the statement of one; Rajan T. Jhangiani; Marketing Manager of M/s. Arebee Shipping Company Private Ltd. Rajan's statement is clearly to the effect that the goods concerned in this case were to be sent along with other goods in a particular container and the destination of the container was South Africa. Therefore; on careful consideration of; the entire evidence on record; we have no hesitation to conclude that the order of confiscation of the goods in question is perfectly sustainable in law. Jamadar; the learned counsel; at this stage made a fervent plea for the reduction in the quantum of fine and penalty and contended that the goods being general merchandise goods; the margin of profit would hardly be 7% to 8% and it was further urged that even after redemption the appellant could not even dispose of the goods for the cost price and had actually incurred considerable loss. Taking these factors into consideration; we reduce the quantum of fine from Rs. 25;000 to Rs. 20;000 (Rs. Twenty thousand) and the penalty from Rs. 10;000 to Rs. 5;000 (Rs. Five thousand). Except for the above modification; the appeal is otherwise dismissed.