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TMI Blog2000 (2) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... ved which bears railway mark; that the goods were booked from Bhadhohi for Tikonia. As the officers had specific intelligence in the case that the goods were meant for export to Nepal illegally, the goods were examined and seized. On examination and trade opinion obtained the goods were found to be of export quality and valued at Rs. 44,45,000/-. Detailed enquiries were conducted. Statement of one Shri Biggan was recorded who indicated that the goods were meant for Nepal and were to be taken to Nepal by one Shri Shivraj Tiwari who is a resident of Tikapur (Nepal). One Shri Srikrishna appeared before Supdt. of Customs on 12-2-92 and claimed ownership of the goods stating that he came to know that about 5/6 days back, the carpets have been seized by the Customs Department; that for clearance of the goods he took the Railway Receipt; that he was given the Railway Receipt by Shri Hafiz at Tikonia; that Hafiz is a resident of Shahjahanpur; that he did not know the full address of Hafiz; that Hafiz deals in carpets; that he knew Hafiz for last one year and met him at Tikonia; that on 4-2-92 he met one Customs Officer who asked him to go to Lucknow in connection with the seizure of his go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Arguing the appeal Shri Vivek Sood, ld. Counsel submits that he would like to argue the matter on points of law. He submits that the two points of law that arise in the present case are whether penalty can be imposed when a person makes a wrong claim and the second point is whether the goods can be confiscated inside the Indian Territory when the place of seizure is well within the Indian Territory and the attempt to export is not proved. Ld. Counsel submitted that the authorities below stated that there was violation of Section 113(d) and 113(e) of the Customs Act and therefore, penalty was imposable under Section 114 of the Customs Act. He submitted that Section 113(d) reads 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 . He submits that there are two limbs of this sub-section of Section 113. The first limb is that the goods should have been brought within the limit of any Customs area. He submits that the appellants have taken the stand that the goods were seized inside Indian Territory which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not traded in the area where the carpets were seized. Shri Biggan had given the statement that these carpets were meant for Nepal. Shri Srikrishna in his statement recorded on 12-2-92 could not disclose the destination of the carpets. All these enquiries lead us to believe that the carpets were meant for illegal export to Nepal. Now whether it was an attempt or it was a preparation in terms of the above two decisions cited and relied upon by the appellants. We find that the preparation was when the carpets were purchased and booked from Badhohi. The carpets had reached Tikonia since Tikonia is nearer Indo Nepal Border, they could at any point of time be carried across the Border to Nepal and thus, the attempt also in this case was completed. We note that the Apex Court in the case of State of Maharashtra v. Mohd. Yokub Others reported in 1983 (13) E.L.T. 1637 held that there is a distinction between preparation and attempt ; that attempt begins where preparation ends; that a person commits the offence or attempts to commit a particular offence when he intends to commit that particular offence and he, having made preparations and with the intention to commit the offence, does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to export the goods under seizure in contravention of the provisions of law . 7. Hon ble Kerala High court in the case of Asstt. Collector of Customs Others v P.V. Thomas Others reported in 1988 (35) E.L.T. 300 observed that The various items of evidence established that the concealment and attempt to export the prohibited item Ganja which is a dangerous drug, coming under Section 2(b) of the Dangerous Drugs Act, 1930, were made only by accused 1 2; that even without the presumption under Section 138A of the Customs Act and Section 32 of the Dangerous Drugs Act, the culpable mental state is sufficiently there; that there are ever so many other items of evidence afforded by the testimonies of PWs 4 and 15. Therefore, there is no question of interfering with their conviction for an offence, punishable under Section 13 of the Dangerous Drugs Act as well as Section 135(1) of the Customs Act, for having contravened Section 7 read with Section 20 of the Dangerous Drugs Act . This Tribunal while examining the Export and ambit of attempt to export in the case of Penguin (MFT) International v. Collector of Customs, Cochin reported in 1988 (35) E.L.T. 388 observed The moment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that he had invested Rs. 25,000/-. Thus, the investment of Rs. 25,000/- will not make Shri Srikrishna, the owner of 133 pcs. of woollen carpets to have been valued at more than Rs. 44 lakhs. On the contrary we find that Shri Srikrishna with the assistance of others manipulated the entire transaction with the clear motive of illegally carrying the carpets to Nepal. This is evident from the RR which shows the name of the consignor and consignee as Shri Srikrishna. The investigation report of the bills and invoices indicated that the firm was closed for more than four years and that the invoices were not issued by that firm. Shri Srikrishna who named Hafis as a person who invested Rs. 1,25,000/- could not furnish the address and other details about the person. Thus, the ownership really did not vest in Shri Srikrishna. However Shri Srikrishna made an attempt to show that he was the owner. 11. On ownership ld. Counsel also referred to the provisions of Railways Act where he submitted that in terms of Section 74 the property in the consignment covered by the Railway Receipt shall pass on the consignee or the endorsee as the case may be on the delivery of such railway receipt to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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