Document Fragment View
Fragment Information
Showing contexts for: attempt to export in Ranjit Export Private Ltd. vs Collector Of Customs, Madras on 6 September, 1984Matching Fragments
"Confiscation of goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation.
* * * *
(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".
On facts, the goods were not brought within the limits of any customs area for the purpose of being exported. It is being only claimed that the goods were attempted to be exported. Mr. K. Alagiriswami, learned counsel for the petitioner, put forth the contention that assuming that the alleged attempt of exportation of the goods would be contrary to any prohibition imposed by or under the Act or any other law for the time being in force, yet, the matter could not come within the legal concept "attempt to export" at all to attract section 113(d). Hence, this court need not dwell upon the aspect as to whether the attempt, if in fact there was such an attempt, in law would be contrary to any prohibition imposed by or under the Act or any other law for the time being in force.
Movement need not necessarily be at a place outside the territory of India. The movement could as well be within the territory of India. But, there should be movement of the goods. Otherwise, the very concept of taking out will have no meaning. I asked Mr. R. Thyagarajan, learned counsel for the respondent, as to whether he would subscribe to a view that only by satisfying the formalities and going through the provisions under the Act there could be an exportation of the goods. Learned counsel rightly gave the answer in the negative. Obviously, there could be export, in the sense taking of the goods outside India, even without going through the formalities and satisfying the provisions of the Act and still, and attempt in such taking out of the goods would come within the mischief of contravention and prohibitions imposed by or under the Act or any other law for the time being in force and section 113(d) would be attracted. Hence, it is not possible to test as to whether what happened and what a party did in a particular case would constitute an attempt to export within the mischief of section 113(d) of the Act by adverting only to the satisfaction of the formalities under the Act. There could be an attempt to export even without going through the formalities under the Act and satisfying the provisions thereof. Section 113(d) has got two limbs. The first limb speaks about goods attempted to be exported and the second limb speaks about goods being brought within the limits of any customs area for the purpose of being exported. As stated above, the second limb has not come into play because, admittedly, the goods were not brought within the limits of the Customs area for the purpose of being exported, contrary to the prohibitions. If the goods have come with such an intention within the limits of the Customs area, then, the second limb could definitely be attracted. But, the first limb covers a larger area. Even without being brought within the limits of the Customs are, there could be an attempt to export the goods in contravention of the prohibitions. In my view, to attract the first limb of section 113(d), the process of movement of the goods for the purpose of taking them out of India must have begun. There is no need for me to advert to the question as to whether in the completion of the formalities or the satisfying with the other provisions of the Act, any violations thereof could be detected and penalised. I am testing the case only on the specific case expressed by the respondent that section 113(d) of the Act alone is attracted, in that the petitioner attempted to export the goods. While the satisfaction of the provisions and the completion of the formalities under the Act have got a place, they, by themselves, without there being any overt act towards the movement of the goods for the purpose of taking them out of India, would not amount to attempt to export the goods.
24. In the language of the Supreme Court, attempt defies a precise and exact definition. Section 511 of the Indian Penal Code punishes 'attempt', but it does not define 'attempt'. All said, the question is really one of fact depending upon the peculiar features and circumstances of each case and the provisions of law, the attempted breach of which is complained of. In the context of the present case, we cannot lose sight of the definition of 'export' found in section 2(18) of the Act. The essential ingredient of export is the taking out of India. The acts complained of must fall in the course of movement of the goods with an intention to take them out of India. All other acts done anterior to this step, namely, movement would only partake the character of preparations. If the petitioner has done any act towards the exportation, namely, taking of the goods out of India and if the act or acts could be fitted in the course of such movement of the goods, or, in other words, the act could fall in the course of progress towards the actual physical taking of the goods out of India, the mischief of section 113(d) would be attracted. There should be a direct physical movement towards the taking of the goods out of India after all the preparations are made and which preparations may also fall within the satisfaction of the provisions and completion of the formalities under the Act. There must be an act or acts done towards the actual physical movement of the goods with an intention to take them out of India. That alone, in my view, would constitute an attempt to export the goods, that too depending on the facts and circumstances of the case. As stated above, I am not expressing any opinion with reference to the violation of any of the provisions of the Act which would involve penal consequences, since such a stand is not expressed before me by the respondent. The essential feature to be taken note of for assessing this question is as to whether the act of the person did reach a point which constituted an actus reus. This question is one of law depending upon the facts and circumstances of the case to be decided by the Court. If there is no taking of the goods out of India, there is no exportation. Hence, "attempt" must also have relevance to the taking of the goods out of India. We are not concerned with the actual completion of the exportation. We are concerned only with the attempt. But, if no feature which would constitute actus reus or physical element towards taking of the goods out of India is made out on the facts and circumstances of the case, it will be far fetched to invoke the first limb of section 113(d) of the Act. That is the point on facts in the present case. The definition of "Export" as found in section 2(18) and the concept of "attempt" as I could evolve with reference to the export, as defined in the Act, being what they are, I am of the view that the respondent is not in order to detain the goods on the ground that section 113(d) of the Act is attracted and the goods are liable to confiscation on that ground.
25. In this connection, I must also take note of the fact that the petitioner stopped of its own volition with the completion of the formalities up to and inclusive of section 50 of the Act. Thereafter the petitioner wrote a letter on 26-5-1984 requesting for cancellation of the cancellation of the concerned three shipping bills. It is true, if the factual features have made out that what the petitioner did could fall within the legal concept of "attempt to export", there will be difficulty in accepting this letter of withdrawal or abstention as watering down the implications of attempt as such. But, I have found that what the petitioner did could not fall within the legal concept of "attempt to export" and the satisfaction of the provisions and the completion of the formalities up to and inclusive of section 50 of the Act, have got a place under the Act and they could only partake the character of preparations with regard to "attempt to export", which could be defined only taking note of the definition of "export" found in section 2(18) of the Act. The discussion which has preceded obliges me to countenance the case of the petitioner and accordingly, the writ petition is allowed. I make no orders as to costs.