9911796707
TMI Blog2005 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, I proceed, therefore, to decide the appeal itself after waiving the requirement of pre-deposit. 4. On 20-11-03, the appellant was intercepted by officers of the Air Intelligence Unit at Chhatrapati Shivaji International Airport, Mumbai, Foreign currency, found in his possession, as well as Indian currency to the tune of Rs. 72,000/-, was seized, under a Panchanama. The proceedings culminated in the issuance, to the appellant, of a Show Cause Notice, dated 12-5-04, proposing confiscation of the said currency. The proposals in the said Show Cause Notice were confirmed, in toto, by the Additional Commissioner, vide his Order-in-Original dated 7-3-05 supra. 5.Most of the findings entered by the Additional Commissioner against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as the FEM (E I) Regulations ], which reads as under : Any person resident outside India may take out of India unspent foreign exchange not exceeding the amount brought in by him and declared in accordance with the proviso to clause (b) of Regulation 6, on his arrival in India. Clause (b) of Regulation 6 of the FEM (E I) Regulations, it may be noted, permits the import of foreign currency, not in excess of US $ 5000, at any one time, without declaration. 8.The case put forth by the appellant before the Commissioner (Appeals) was that the foreign currency found in his possession was unspent foreign exchange brought in by him on previous visits, on each of which occasion the amount was less than $ 5000. As has already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictory to the factual findings entered by him prior thereto, and set out above. The concept of when attempt can be said to have taken place has been examined, in detail, by the Hon ble Orissa High Court in Ramakrishna Aggarwal v. C.C.E. - 1989 (39) E.L.T. 183 (Ori.), wherein the judgment of the Hon ble Supreme Court in Malkiat Singh v. State of Punjab, AIR 1970 S.C. 713, was relied upon, as under: In AIR 1970 SC 713, Malkiat Singh and Another v. The State of Punjab, a distinction was drawn between preparation and attempt. It was held that a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le conclusion is that the Commissioner (Appeals) erred in holding the appellant guilty of attempting to smuggle out the foreign currency seized from him. Had the appellant changed his mind before he reached the Customs counter, there would have been no offence attributable to him. It cannot, therefore, be said that an attempt to smuggle out foreign currency could be said to have been committed by the appellant. The same reasoning would apply to the Indian currency seized from the appellant, though no findings have been entered by the Commissioner (Appeals) in respect thereof. 12.In view of the above, it is not required for me to enter into the interpretation of Regulation 7(4) of the FEM (E I) Regulations supra, or other grounds can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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