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TMI Blog2005 (12) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... to it, left unclaimed. The flight was called back and the first appellant was off loaded. She identified and claimed the suitcase. She also stated that she had forgotten to take the suitcase, in a hurry. The suitcase contained 2 bags one black coloured rexin bag with marks New Attack International and another small bag together containing Indian currency of Rs. 22 lakhs and foreign currency equivalent to Rs. 5,022/-. The black coloured handbag was found to be containing Rs. 7,978/-. The currencies were seized as they were brought within the Customs area and were being attempted to be exported in violation of Foreign Exchange Management Act and Rules framed thereunder. In her statement recorded on 18-06-2002 under Section 108 of the Customs Act, she confirmed the ownership of the suitcase and the seized currency. She deposed that she received the currency from one Shri Ramesh of M/s. Sarvodaya and Mayur Jewellers, Mumbai as loan required by her husband who is having a hotel business in Dubai. She admitted to the non-declaration of the currency. Investigations were carried out by the departmental officers. The second appellant is Shri Dinesh Kannan, husband of the first appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase belonging to her. The same was opened in the presence of everybody and since nothing incriminating was found, she was allowed to proceed to the aircraft IC-961. She boarded the aircraft at 1800 hrs. When the aircraft was taxying off, the Captain announced that they are returning to the Bay for Customs and Security reasons. When the door was opened, T. Srinivas introduced himself as a CISF officer and wanted to check her suitcase. She brought her suitcase and when she wanted to open and show he told her to come to the departure hall. After she was brought to the departure hall, she was kept in a cabin along with a lady constable Anita Ghosh and she was asked to claim some other bag. Though she denied the ownership, she was persuaded to claim some other bag under threat and persuasion. Her statement was recorded by Shri T. Srinivas, the CISF Commandant, which has not been placed on record. (iii) The learned Advocate relied on the following case-laws to urge that non-supply of the documents requested for is a clear violation of Principles of Natural Justice. (a) ASAPCS (India) Pvt. Ltd. v. Collector - 1984 (18) E.L.T. 3 (T) (b) Ambalal v. UOI - 1983 (13) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do with the currency and they are not liable for penalty under Section 114(i). For the same reason, FEMA Act and Regulations are not attracted. Further, she has not violated Section 77 of the Customs Act inasmuch as she made a correct declaration regarding the contents of her baggage in the Crew Baggage Declaration Form. (vii) A careful reading of Section 113(d) ibid, would show that in order to invoke the provisions of 113(d), it is necessary to show that:- (a) There was an attempt to export any goods. (b) Or such goods were brought within the limits of any Customs area for the purpose of being exported, and (c) The attempt to export or bringing within the limits of any Customs area was contrary to any prohibition under the Customs Act, 1962 or any other Law for the time being in force, (viii) From a harmonious interpretation of the definitions given in N.P. Sections 2(18), 2(19), 2(20) and 113(d) of the Customs Act, 1962 and the judicial decisions cited above, it emerges that to constitute an offence of attempt to export it is required to be shown firstly, that the prohibited goods were brought within the Customs area and secondly, for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Dooars Transport Pvt. Ltd. v. CC (Prev.) - 1993 (64) E.L.T. 322 (T) (d) Ajay Gurudasmal Arora v. CC (Prev.), Mum. - 2002 (147) E.L.T. 943 (T). (xi) The appellants have no objection for confiscation of the currency as they are in no way concerned with it. As they have not done or omit to do any act, which would render the goods liable for confiscation under Section 113(d) or (i) or abetted the doing of omission of such an act, they are not liable for penalty under Section 114(i) of the Customs Act, 1962. 5. The learned SDR pointed out that there is a clear link between the currency seized and the first appellant. Her visiting card was found in the tag in the suitcase seized. She herself has owned the suitcase and the currency. She has given a statement under Section 108 as to how she came in possession of the currency. In these circumstances, he urged the bench to uphold the OIO. 6. We have gone through the records of the case carefully. The findings of the adjudicating authority mainly depend on the statements of the appellants made before the Customs Officers. As to the source of the currency seized, there is much inconsistency between the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The non-supply of these documents amounts to denial of the Principles of Natural Justice. The learned Advocate, before the Adjudicating Authority, made the submission that the first appellant was asked to claim some other bag, which did not belong to her. Mr. Srinivasan told her to tender her statement in writing and then she would be released. Accordingly, she gave a statement detailing these facts. Mr. Srinivasan took her to the Customs and there she was asked to give another statement claiming the ownership of the Indian currency of Rs. 22 lakhs. CISF Head constable, Ms. Anita Ghosh, opened her Delsey bag, and did not find an Indian currency and drew a Punchnama. They found visiting card of her husband s nephew Mr. Muralidharan. After the Punchnama was drawn by the CISF, the Customs official asked her to own the currency and write a statement as dictated by them. They assured her that if the statement were given as required by them, she would be released. She refused to give a statement claiming the ownership of the currency. She was detained for the whole night. In these circumstances, a statement was recorded by threat and coercion at 4 a.m. This statement was altered by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity Area, it cannot be said that the first appellant exported it or made an attempt to export the same. The Tribunal, in the case of Sripad Upadhyay v. CC, Chennai - 2001 (138) E.L.T. 768.(Tri.-Chennai), has held that when goods are not presented to proper officer for clearance, they do not become export goods and are not liable for confiscation. In the above case, the Cargo covered by Shipping Bills was carted from the manufacturer s place to CFS Station, Sanco in Chennai on 16-4-1998. On 17-4-1998, a letter was sent to the Customs to withdraw the consignment as the number of pieces in each carton will not tally with the packing list and this happened due to oversight. Revenue proceeded against the appellant and penal action was taken. The Tribunal held that in terms of Section 51 of the Customs Act, the order permitting clearance is provided and till it is obtained, export remains in the realm of preparation. The Hon ble Supreme Court, has clearly brought out the difference between attempt and preparation in the case of State of Maharashtra v. Mohd. Yakub (cited supra) by the learned Counsel. It has been held that attempt begins where preparation ends. A person commits t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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