Custom, Excise & Service Tax Tribunal
Md.Raju Hussain vs Commissioner Of Customs(Prev.), ... on 18 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.CA-75214/15
(Arising out of Order-in-Appeal No.67/CUS(A)/GHY/14 dated 25.11.2014 passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Guwahati.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Md.Raju Hussain
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Prev.), Guwahati
Respondent (s)
Appearance:
Shri A.C.Tikadar, Consultant for the Appellant (s) Shri M.Singh, Addl.Commr.(AR) for the Revenue (s) CORAM:
Honble Shri H.K.Thakur, Member(Technical) Date of Hearing/Decision :- 18.09.2015 Date of Pronouncement :- 18.09.2015 ORDER NO.FO/A/75571/2015 Per Shri H.K.Thakur.
This appeal has been filed by the appellant against Order-in-Appeal No.67/CUS(A)/GHY/14 dated 25.11.2014 passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Guwahati as first appellate authority. Under this order first appellate authority has upheld Adjudication Order-in-Original No.13/ACG/CUS/14-15 dated 08.07.2014 confiscating 54.50 Kgs. of Agarwood of a plant Acquilaria malaccensis, valued at Rs.4,90,500/-, upon the appellant under Section 114 of the Customs Act,1962.
2. Shri A.C.Tikadar (Consultant) appearing on behalf of the appellant argued that appellant Md.Raju Hussain was incepted by the officers of DRI on the check-in-counter of Indigo flight at L.G.B.I.A., Guwahati on 18.01.2014 based on an intelligence that appellant is carrying Agarwood for export to Bangkok. That Appellant was found to have inter alia 54.50 Kgs. of Agarwood in his baggage along with a Tax Invoice No.278 dated 17.01.2014 of M/s.Assam Perfumery Supply Hojai; a transit pass No.50 (Book No.15024) issued by Range Forest Officer (RFO) Golaghat Range, Forest Department, Assam; Lieu TP No.1984/23 issued by Forest Beat Officer, Kohra Range, Assam; Money Receipt No.23 dt.17.01.2014 issued by RFO, Golaghat Range, Assam and his Indian passport No.G6443506. That the Agarwood was seized by the officers under the reasonable belief that the goods are meant for export to Bangkok. That appellant vide his statement dated 19.01.2014 has explained the licit acquisition of agarwood as per the accompanying documents and also stated that he was carrying the goods to Mumbai for local sales there. That the goods were not meant for taking to Bangkok as he was having no valid visa for Bangkok in his passport. That after detailed investigation, issue of show cause notice and following the principles of natural justice Order-in-Original dt.8.7.2014 was passed against the appellant.
2.1 Learned Consultant of the appellant argued that there is no evidence on record that the seized goods were meant for export. That even if the covering document were not explaining the acquisition of Agarwood, it cannot be said that the same was meant for export or attempted to be exported. That there was no valid visa with the appellant for going to Bangkok at the time of seizure of goods. Learned Consultant relied upon the following case laws in support of his argument that Agarwood is neither notified nor was seized in Customs Area:-
(i) Md.Liakat Ali v. CC(Prev.), Kol, W.B. [2008 (222) ELT 295(Tri.-Kolkata)]
(ii) Debdas Adhikari & Dinabandhu Adhikary v CC(Prev.), Kol, W.B. [2008 (222) ELT 299 (Tri.-Kolkata)
3. Shri M.Singh, Addl.Commr.(AR) appearing on behalf of the Revenue argued that appellant on earlier occasions has also travelled to Bangkok twice as per his passport. That he has also earlier taken two consignments of Agarwood to Mumbai which must have been taken to Bangkok. That appellant could not produce any evidence of legal acquisition of seized goods as the documents furnished by him were found to be forged or not covering the Agarwood under seizure. That as per Notification No.3(RE-2003)/2002-2007 dated 31.03.2013, read with Schedule 2 (Chapter-12) of the Export Policy 2002-07 export of Agarwood is prohibited. Learned AR, therefore, strongly defended the orders passed by the lower authorities. Learned AR also made the Bench go through statement dated 19.01.2014 of the appellant to argue that circumstantial evidences strongly suggest the seized Agarwood was meant for illegal export to Bangkok.
4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether Agarwood seized from the appellant can be confiscated under Section 113 and whether penalty can be imposed upon the appellant under Section 114 of the Customs Act, 1962 in view of the factual matrix of this case. Relevant Section 113(3) of the Customs Act, 1962 is reproduced below :-
SECTION 113
(d) any goods attempted to be exported or brought within the limits of any customs area 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;
4.1 As per the above provisions it has to be established by the Revenue that Agarwood was attempted to be exported to Bangkok, as the seized goods are neither notified under Section 123 nor specified goods under the Customs Act, 1962. First appellate authority in para 23, 24 & 25 of the Order-in-Appeal dated 08.12.2014 has only upheld the confiscation on the basis of illegal acquisition of seized goods and has not given any findings as to how seized goods were meant for export. There is no evidence on record that appellant during earlier two visits to Bangkok carried Agarwood though an attempt was made by investigation as per a Mo.17 contained in the statement dated 19.01.2014 of the appellant. There was no valid visa in the passport of the appellant for going to Bangkok. Circumstantial presumptions based on the intelligence of DRI; that on earlier two occasions he has gone to Bangkok and not giving addresses of his earlier buyers of Agarwood in Mumbai; cannot take the place of evidence that appellant on earlier occasions has illegally exported Agarwood to Bangkok. Intelligence/information of the investigation could at best indicate the suspicious activities of the appellant and his intention. This Bench in the case of Md.Liakat Ali v. CC(P) Kolkata, W.B. (supra), relying upon Apex Courts decision in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663], held as follow in 4.1 to 4.3:-
4.1There was no interception at all by the Customs Authorities in the notified area under Section 7 of the Customs Act, 1962. The currency in question were not found in notified area nor notified goods calling for discharging burden of proof under Section 123 of the Customs Act by the Appellants. Furthermore, the intention of all the noticees were very clear from the show cause notice itself that they carried the money for depositing into the cash credit account maintained by Liakat Ali in Central Bank of India at Malda which was also found by adjudicating officer being corroborated as to the maintenance of account by the order of adjudication itself. Therefore, nothing is in record proving intention of carrying money for any ulterior purpose and whether there was any circumstantial or direct evidence suggesting attempt to export the currency. Mere preparation if that was at all, that does not amount to attempt. Meaning of the term attempt as observed by Honble Supreme Court in the case of State of Maharashtra v. Mohd. Yakub & Ors. reported in 1983 (13) E.L.T. 1637 = AIR 1980 SC 1111 relying on the judgment of Abhayanand Mishra v. State of Bihar reported in (1962) 2 SCR 241 appearing in para 13 of the judgment was as under :-
13. Well Outlines of Criminal law defined then, what is an attempt ? Kenny is his attempt to commit a crime as the last proximate act which 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 three stages. The first stage exists when the culprit first entertains the ideas or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such an act or acts were deliberately done, and manifest a clear intention to commit the offence 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 begins 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 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.
?4.2Furthermore, the attempt has to result with either futility or success of the smuggle. This aspect should have been examined on the light of evidence and appreciated by the authorities below and brought out very clearly the charge proving the manner how attempt was made. Three learned judges of the Honble Supreme Court in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663)], dealt with a case where paddy, booked by a firm in Punjab to a consignee to Delhi, was carried in a lorry driven by the first appellant and the lorry was stopped by the police at a place which was 32 miles from Delhi, that is, inside the State of Punjab (the Punjab-Delhi boundary was 18 miles from Delhi), and the appellants, along with others, were prosecuted and convicted for an offence under section 7 of the Essential Commodities Act, and the Supreme Court, while holding that no offence has been committed by the appellant nor was there an attempt to commit an offence analysed the question and expressed their opinion in the following terms :
...It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown, first, to have had an intention to commit the offence, and secondly, to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his digest of Criminal Law, art. 50 defines an attempt as follows :-
An act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case. The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states that any person who attempts to contravene, or abets a contravention of, any order made under section 3 shall be deemed to have contravened that order. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under S. 7 of the Essential Commodities Act. Pages 666-667 The Honble Supreme Court has categorically held that the attempt should point out to the very act of mischief itself with live link and nexus.
4.3In? Asgarali Pradhantha v. Emperor [(1934) ILR 61 Cal. 54], a Bench of the High Court at Calcutta, consisting of Lord-Williams and Mcnair, JJ., chose to sum up the law in India on the aspect of attempt in the following terms :-
So far as the law in India is concerned, it is beyond dispute that there are four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit and, if the third stage is successful, the commission itself. Intention alone or intention followed by preparation are not sufficient to constitute and attempt. But intention followed by preparation followed by any act done towards the commission of the offence is sufficient. Act done towards the commission of the offence are the vital words in this connection.
4.2 In the present case also the goods are not seized in a customs area. There is no inculpatory statement, no valid visa/ticket with the Revenue suggesting intended visit of the appellant to Bangkok. The seized goods are also neither notified goods nor specified goods under the Customs Act, 1962. Prohibitions under the Export Policy will come into operation if the goods are brought into the Customs area. In view of the above observation and the ratio of the relied upon case laws decided by this Bench, it has to be held that investigation is not able to prove that Agarwood seized from the appellant was attempted to be exported out of India. Interaction/preparation cannot be considered as an attempt to export in the absence of any positive evidence to that aspect. Any other law imposing prohibition/restriction on the movement of any category of goods within India, cannot be made the ground for confiscation of such goods under the Customs Act, 1962. Accordingly, confiscation of the seized goods and the penalty imposed upon the appellant, under Sections 113 & 114 respectively of the Customs Act, 1962, are required to be set aside.
5. However, it is observed from the case records and findings of both the lower authorities that there are certain restrictions from the Forest department on movement of Agarwood and that the documents produced by the appellant were not found to be genuine. This Bench is of the view that the impugned goods should be released to the appellant in the presence of jurisdictional Forest officers for taking any suitable action on the goods/appellant, as per their laws/procedures.
6. Appeal filed by the appellant is allowed on the terms mentioned hereinabove.
(Operative part of the order was pronounced in the open court.) SD/ .
(H.K.THAKUR) MEMBER(TECHNICAL) sm 10 Appeal No.CA-75214/15