2011 (6) TMI 625 - AT - Customs

Whether diamonds confiscated by the learned Commissioner and offered for redemption by the Courier were liable to confiscation under Section 113 of the Customs Act - Counsel has relied on the interpretation given in the aforecited cases to the expression attempt to export . In his view, an attempt to export any goods should be reflected by positive acts like bringing of the goods to the customs area, filing of shipping bill etc. In the absence of such acts in this case, it cannot be held that the diamonds were attempted to be exported. In this manner, it has been argued that clauses (d), (e) and (i) of Section 113 of the Customs Act are not applicable. Therefore, the goods are liable to be released unconditionally to the owner adjudged by the Criminal Court Held that - as the goods were not brought within the limits of any customs area for any purpose whatsoever, clause (d) cannot be applicable. Obviously, the opening part of the said clause has been overlooked by the learned Counsel. Any goods attempted to be exported is an independent leg of clause (d). The adjudicating authority has to determine whether the diamonds were attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. appeals allowed by way of remand

Summary

Issues Involved:
1. Ownership of the confiscated diamonds.
2. Liability of the diamonds to confiscation under Section 113 of the Customs Act.

Detailed Analysis:

Issue 1: Ownership of the Confiscated Diamonds
The learned Counsel for M/s Dalumi Hong Kong Ltd. presented a copy of the final judgment by the Additional Chief Metropolitan Magistrate in C.C. No. 927/PW/2010, which directed that the seized diamonds (305 carats with the Investigating Officer and 619 carats with DRI) be returned to the complainant, Mr. Guy Yehskil Yas, who is the Asia Sales Manager of M/s Dalumi Hong Kong Ltd. This judgment is final under Section 265G of the Cr.P.C. subject to Articles 136, 226, and 227 of the Constitution of India. The learned JDR acknowledged this direction, thus resolving the issue of ownership in favor of M/s Dalumi Hong Kong Ltd.

Issue 2: Liability of the Diamonds to Confiscation under Section 113 of the Customs Act
The core question was whether the diamonds were liable to confiscation under Section 113 of the Customs Act. The learned Counsel argued that the filing of a declaration by Shri Valmore with the courier was merely preparatory and did not constitute an 'attempt to export.' He cited several case laws to support this interpretation, emphasizing that an attempt to export should involve acts like bringing goods to the customs area or filing a shipping bill.

The learned JDR countered that the declaration filed with the courier under Regulation 4(2) of the Courier Imports and Exports (Clearance) Regulations, 1998, was part of the export scheme, and if not intercepted, the goods would have been exported. This, he argued, constituted an 'attempt to export' under clause (d) of Section 113 of the Act.

The Tribunal considered the statement of a courier employee, which suggested that the courier did not intend to proceed with the dispatch immediately. The Counsel for M/s Dalumi Hong Kong Ltd. argued that this indicated no attempt to export by the courier. However, the Tribunal noted that this issue was not fully examined by the lower authority.

The Tribunal concluded that if M/s Dalumi Hong Kong Ltd. could establish that 'profile manifesting' indicated an intention not to export, they could avoid clause (d) of Section 113. Clauses (e) and (i) were deemed inapplicable as the parcel was not brought within the customs area, nor was a shipping bill filed.

The Tribunal remanded the case to the Commissioner to determine whether clause (d) was applicable. If the Commissioner found no attempt to export by the courier, the diamonds would be released unconditionally. If an attempt was found, the diamonds could be confiscated, but the owner would be given an option for redemption under Section 125 of the Customs Act, in line with the Criminal Court's order.

Additional Consideration:
The Tribunal also directed the Commissioner to consider the request for re-export of the goods under the relevant Notification, condoning any delay beyond the prescribed period of six months.

Conclusion:
The appeals were allowed by way of remand, with instructions to the Commissioner to pass a speaking order on the issues remitted, ensuring the case is disposed of within three months.