2008 (9) TMI 358 - AT - Customs

Overvaluation for claiming excess duty drawback - Confiscation and penalty revenue contended that various activates were with a view to avail illegal draw back by over valuing the goods and therefore the goods were liable to confiscation and penalties were liable to be imposed held that - . In such as scenario, loading of the goods can at best be considered as preparation for export bur certainly not attempt to export by over valuing the goods. Since preparation is not an offence, which will render the goods liable to confiscation under the Customs Act, 1962, we set aside the confiscation of the goods. Once there was no attempt to export, the question of imposing penalties for exporting the goods my mis-declaring the value etc. and for aiding and abetting such expert simply does not arise. Commissioner s order is accordingly set aside and the appeals are allowed

Summary

Issues Involved:
1. Whether the act of loading goods on trucks for transportation to Calcutta constitutes an attempt to export over-valued goods.
2. Whether the goods were liable to confiscation under the Customs Act, 1962.
3. Whether penalties were rightly imposed on the appellants for attempting to export over-valued goods.

Detailed Analysis:

1. Whether the act of loading goods on trucks for transportation to Calcutta constitutes an attempt to export over-valued goods:
The appellants argued that merely loading the goods onto trucks for transportation to Calcutta did not constitute an attempt to export. They cited the Supreme Court's distinction between preparation and attempt, emphasizing that their actions were harmless and did not indicate an intention to export. The Tribunal referenced the case of Malkiat Singh and another v. The State of Punjab, where the Supreme Court held that mere preparation does not amount to an attempt unless the acts are proximate to the commission of the offense. The Tribunal also considered the case of State of Maharashtra v. Yakub & Others, where it was held that an attempt requires an act that reveals a clear intention to commit the offense. In this case, the goods were several hundred miles from the port, and there was no evidence of steps taken towards exporting the goods from Calcutta.

2. Whether the goods were liable to confiscation under the Customs Act, 1962:
The Tribunal found that the goods were not liable to confiscation as there was no attempt to export them. The appellants had argued that the goods were being transported to Calcutta, and no documents were produced to show that they were meant for export. The Tribunal noted that the statements recorded on the spot indicated that the goods were being transported to Calcutta, and there was no evidence to suggest that the goods were being exported from Nhava Sheva. The Tribunal concluded that the act of loading the goods onto trucks was merely preparation and not an attempt to export, thus not rendering the goods liable to confiscation under the Customs Act, 1962.

3. Whether penalties were rightly imposed on the appellants for attempting to export over-valued goods:
The Tribunal held that since there was no attempt to export the goods, the penalties imposed on the appellants were not justified. The Tribunal emphasized that the evidence presented by the revenue was related to the export from Nhava Sheva, and there was no indication that the appellants intended to export the goods from Calcutta. The Tribunal also noted that the letter of credit had expired, and there was no attempt to extend it. Consequently, the Tribunal set aside the penalties imposed on the appellants for attempting to export over-valued goods.

Conclusion:
The Tribunal concluded that the act of loading goods onto trucks for transportation to Calcutta did not constitute an attempt to export over-valued goods. As such, the goods were not liable to confiscation under the Customs Act, 1962, and the penalties imposed on the appellants were not justified. The Tribunal set aside the confiscation of the goods and the penalties imposed, allowing the appeals.