1992 (9) TMI 208 - AT - Customs

Summary

Issues:
1. Confiscation of goods and imposition of penalty by the Additional Collector of Customs.
2. Allegation of attempting to export goods to Nepal without a permit.
3. Interpretation of 'attempt' versus 'preparation' in the context of the offence.

Analysis:
1. The appellant filed an appeal against the orders of the Additional Collector of Customs, which confiscated goods and imposed a penalty of Rs. 5,000. The goods were seized from a private godown near the Indo-Nepal border, suspected of being illegally exported to Nepal. The appellant, a forwarding agent, claimed he was waiting for the India-Nepal Treaty to be revived before exporting the goods. The department argued there was an attempt to export the goods, supported by claims from six other individuals. The main issue was whether the confiscation and penalty were lawful.

2. The appellant's consultant argued there was no evidence of attempting to export the goods without a permit. He cited similar cases to support the appellant's explanation of waiting for the Treaty to be reinstated before exporting. The departmental representative contended that the proximity of the godown to the border and multiple claimants of the goods indicated an export attempt. The Tribunal had to determine if there was sufficient evidence of an actual attempt to export the goods illegally.

3. The Tribunal referred to the distinction between 'preparation' and 'attempt' in criminal law, citing a Supreme Court decision. It explained that an attempt occurs when there is intent, preparation, and an act towards committing the offence. In this case, even if the allegations were true, it appeared to be a preparation rather than an attempt. The appellant's explanation of waiting for the Treaty's revival and the goods being stored for six months supported this view. As there was no movement towards Nepal and the goods were under lock, the Tribunal concluded that the confiscation and penalty were not justified. The goods were ordered to be returned to the appellant, and the penalty of Rs. 5,000 was set aside.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, legal interpretations applied by the Tribunal, and the final decision reached in favor of the appellant.