Custom, Excise & Service Tax Tribunal
Commr. Of Customs , Patna vs )Shri Ram Chandra Prasad on 11 September, 2015
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Customs Appeal Nos. : C/197/12,C/198/12 & C/199/2012
(Arising out of the Order-in-Appeal No.89-91/Pat/Customs/Appeal/2012 dated-24/04/2012 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Patna)
For approval and signature of:
SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER
Commr. of Customs , Patna
APPELLANT(S)
VERSUS
1)Shri Ram Chandra Prasad
2) Shri Sanjoy Prasad
3) Shri Abhinav Kumar
RESPONDENT(S)
APPEARANCE Sri S.K. Naskar, A.C. (A.R.) FOR APPELLANT(S) Sri B.N. Chattopadhyay, Consultant & Shri Debaditya Banerjee, Advocate FOR THE RESPONDENT(S) CORAM:
SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER DATE OF HEARING & DECISION : 11/09/2015 ORDER NO : FO/A/75561-63/15 Per SHRI H.K. THAKUR These appeals have been filed by the Revenue against Order-in-Appeal No. 89-91/PAT/Cus/Appeal/2012 dated24/4/2012 passed by Commissioner (Appeal) , Patna as first appellate authority. Under this Order-in-Appeal dated 24/4/2012 first appellate authority set aside Order-in-Original No.131-CUS/ADC/MTH/11 dated 8/9/2011 regarding confiscation of pulses/cereals, truck No. BR-06G/7745 and imposition of penalties.
2. Shri S.K. Naskar, A.C. (A.R) appearing on behalf of the Revenue submitted that on the basis of an information truck No. BR06G/7745 was intercepted on 2./7/2010. That as per the information the assorted pulses/cereals carried in the above truck were meant for illegal export to Nepal. That on interception the truck was found to contain Rahal Dal, Mung Dal & Chana Dal totally valued at Rs.6,83,290/-. That during the search of the truck and the driver an Invoice No. 5 of M/s. Prasad Trading company, Motihari and Form -D-VIII, duly filled with Bihar VAT, were found alongwith 18 blank invoices of M/s. Prasad Trading Co. and blank D-VIII forms. That as per Invoice No.5 the goods were consigned to M/s. Kumar Trading company, Manjharia. That Shri Mukesh Kumar Mishra, Driver of the truck in his statement dt. 2/7/10 stated that truck No. BR-06G/7745 is owned by Smt. Babita Devi, wife of Shri Mukesh Kumar Agarwal, a resident of Harsili but residing in Nepal. That the goods were loaded in the vehicle by Ramchandrajee who is engaged in trading of rice/pulses at Motihari and the intercepted goods were being transported to Manjharia godown for handing over to Krishnajee Munshi working for Ram Chandrajee. That Krishnajee sends the pulses to Nepal on Tractors through off routes/porous border.
2.1 It is the case of the Revenue that the goods were meant to be exported to Nepal and were correctly confiscated by the Adjudicating authority under Section 113 (d) of the Customs Act, 1962 and penalties have been correctly imposed. That vehicle also is correctly confiscated under Section 115 of the Customs Act, 1962. Learned A.R.also made the Bench go through para 3 (i) of the appeal filed by the Revenue to argue that as per Section 114 of the Customs Act, 1962, read with Notification No. 50-CUS dt. 27/3/2000, an area of 50 Kms. from Indo-Nepal Border is specified area . That as the goods were brought into specified area, and were also prohibited by DGFT Notification No. 35/2009-2010 dated 30/310, therefore there was an attempt to export the goods to Nepal. That driver of the vehicle Shri Mukesh Kumar Mishra has stated that Ramchandra Prasad was used to sending the goods to Nepal through vehicles which made it clear that the impugned goods were meant for export to Nepal.
3. Shri B.N. Chattopadhyay (Consultant) and Shri Debaditya Banerjee (Advocate) appeared on behalf of the Respondents. Shri Chattopadhyay argued that the confiscated goods were only intended to be transported to Manjharia Godowns within the territory of India and were never intended /attempted to be exported to Nepal. That the only evidence of the Revenue is based on the statement of Shri Mukesh Kumar Mishra, Driver of truck No. BR-06G/7745, which is only a hearsay as he has never stated to have transported goods on earlier occasions to Nepal. That pulses seized were meant for distribution/sale within India only. Learned Consultant relied upon the following case laws to argue that taking of goods to Manjharia Godown in India 35 kms. away from border, can at the most, be considered as a preparation which is not an offence.
(i) State of Maharashtra Vs. Mohd. Yakub & others [1983 ELT (1637) (SC)]
(ii) Babban Khan Vs. C.C. (P) [1992 (09) LCX 0064] 3.1 It was strongly argued by the Learned Consultant that the goods were not intercepted while moving from Manjharia Godown towards Nepal border and that the act of the Respondent in the present proceedings cannot be said to be an attempt to export pulses to Nepal. Learned Consultant also relied upon the following case laws on the issue :
(i) Abdus Salam Biswas Vs. CC (P) , Kolkata [2004 (176) ELT 258 (Tri-Kolkata]
(ii) CC (P) Kolkata Vs. Md. Abdul Salam [ 2005 186) ELT 293 (Tri-Kolkata)].
4. Heard both sides and perused the case records. It is the case of the Revenue that there was an attempt on the part of the Respondent to export the impugned pulses/cereals to Nepal which make the goods liable to confiscation under Section 113 (d) of the Customs Act, 1962. Relevant section 113 is reproduced below:
"Section 113. Confiscation of goods attempted to be improperly exported etc.: The following export goods shall be liable to confiscation:-
(a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;
(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;
(c) any goods brought near the land frontier or the coast of India or near any bay,gulf,creek or tidal river for the purpose of being exported from a place other than a land custom station or a customs port appointed for the loading of such goods;
(d) any goods attempted to be exported or brought within the limits of any custom 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;
The word 'export goods' has been defined in Section 2 (19) of the Customs Act, 1962 as follows:
"(19) 'export goods' means any goods which are to be taken out of India to a place outside India".
4.1 The language of Section 113(d) and Section 2 (19) of the Customs Act convey that only those goods which are attempted to be exported are liable to confiscation . There is no evidence on record that the goods under consideration were meant for export to Nepal. Only a statement is made by the truck driver Shri Mukesh Kumar Mishra that Shri Ram Chandra Prasad of Motihari sends rice/pulse to one Mukeshjee in Nepal. It is only a statement based on heresay as Shri Mukesh Kr. Mishra has never transported similar goods on earlier occasions from Manjharia godown to Nepal. There is no evidence, brought on record by the Revenue to rebut the argument of the Respondent that pulses were meant for distribution/sale only within India. Even if is assumed that bringing of pulses to Manjharia godown was intended for Nepal, still this act will come within the domain of 'preparation' and not an 'attempt' as per the case law of State of MaharashtraVs. Mohd. Yakubs and others (supra). In para 13 of this case law Apex Court held as follows:
13.Well then, what is an attempt? Kenny is his? Outlines of Criminal law defined 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 ides 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 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 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. 4.2 There is no other statement from any person in these proceedings that the pulses under consideration were to be exported to Nepal, except intelligency/information of the departmental officers which has to be considered as a 'heresay' and cannot be taken as an evidence. Accordingly, it is held that the impugned pulses were not liable to confiscation under Section 113 (d) of the Customs Act, 1962 as these were moving within the territory of India. Argument of the Revenue that area within 50 kms. of the Border is 'specified area' as per Section 114 of the Customs Act, 1962 is out of context as the same is applicable only to 'specified goods" defined in Section 11H (e) of the Customs Act, 1962 and pulses have not been shown to have been notified as specified goods under Section 111 of the Act.
4.3. Learned Consultant has also relied upon the case law of Abdus Salam Biswas Vs. CC (P) , Kolkata (supra) where this Bench held as follows in para 11.1:
11.1 We find? that the provisions of Section 113 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 in the shop-cum-godown premises situated in the Indian Territory. The appellants 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 Indian Territory towards Bangladesh, so as to arrive at a conclusion that there was an attempt to export the goods to Bangladesh. Initial statement of Md. Kalu Sk. before the BSF Officers has been retracted by him at the time of filing of the Claim Petition of ownership. Learned Consultant has strongly argued that such statement before the BSF Authorities who were duly equipped with the arms, cannot be said to have been given under a free atmosphere, inasmuch as the appellants being poor residents of a village situated on the border are always under the influence of the BSF Officers and would write whatever the Officers want them to write. We note that apart from the fact that there was a statement by Md. Kalu Sk. the voluntary character of which is doubted, we find that there was no attempt on the part of the appellant to export the goods to Bangladesh. As such, by extending the benefit of doubt to the appellants, we set aside the impugned Order of confiscation of Sarees of Indian Origin and for imposition of penalty upon both the appellants. As a result, both the appeals are allowed with consequential reliefs to the appellants.
5. On the issue of confiscation of vehicle it is observed that there is also no evidence on record that owner of the truck had knowledge of smuggled nature of the goods. Otherwise also on merits it is held that the goods involved in the present proceedings are not liable to confiscation under Section 113 (a) of the Customs Act, 1962.
6. In view of the above observations, there is no reason to interfere with the orders passed by the first appellate authority and accordingly appeals filed by the Revenue are rejected.
(Operative part of the order already pronounced in the Court)
Sd/- 9/10/15
(H.K. THAKUR) TECHNICAL MEMBER
K.B/-
Customs Appeal Nos. : C/197/12,C/198/12 & C/199/2012
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