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TMI Blog2015 (10) TMI 2394X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of Respondent that pulses were meant for sale only within India – Information gained by Department was on mere hearsay of driver and cannot be taken as evidence - Impugned pulses were not liable to confiscation under Section 113 (d) as these were moving within the territory of India - Pulses have not been shown to have been notified as specified goods under Section 111 - No evidence on record that owner of truck had knowledge of smuggled nature of goods – Decided against Revenue - Customs Appeal Nos. : C/197/12,C/198/12 & C/199/2012 - ORDER NO : FO/A/75561-63/15 - Dated:- 11-9-2015 - SHRI H.K. THAKUR, TECHNICAL MEMBER For the Petitioner : Sri S.K. Naskar, A.C. (A.R.) For the Respondent : Sri B.N. Chattopadhyay, Consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle by Ramchandrajee who is engaged in trading of rice/pulses at Motihari and the intercepted goods were being transported to Manjharia godown for handing over to Krishnajee Munshi working for Ram Chandrajee. That Krishnajee sends the pulses to Nepal on Tractors through off routes/porous border. 2.1 It is the case of the Revenue that the goods were meant to be exported to Nepal and were correctly confiscated by the Adjudicating authority under Section 113 (d) of the Customs Act, 1962 and penalties have been correctly imposed. That vehicle also is correctly confiscated under Section 115 of the Customs Act, 1962. Learned A.R.also made the Bench go through para 3 (i) of the appeal filed by the Revenue to argue that as per Section 114 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LCX 0064] 3.1 It was strongly argued by the Learned Consultant that the goods were not intercepted while moving from Manjharia Godown towards Nepal border and that the act of the Respondent in the present proceedings cannot be said to be an attempt to export pulses to Nepal. Learned Consultant also relied upon the following case laws on the issue : (i) Abdus Salam Biswas Vs. CC (P) , Kolkata [2004 (176) ELT 258 (Tri-Kolkata] (ii) CC (P) Kolkata Vs. Md. Abdul Salam [ 2005 186) ELT 293 (Tri-Kolkata)]. 4. Heard both sides and perused the case records. It is the case of the Revenue that there was an attempt on the part of the Respondent to export the impugned pulses/cereals to Nepal which make the goods liable to confiscation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods under consideration were meant for export to Nepal. Only a statement is made by the truck driver Shri Mukesh Kumar Mishra that Shri Ram Chandra Prasad of Motihari sends rice/pulse to one Mukeshjee in Nepal. It is only a statement based on heresay as Shri Mukesh Kr. Mishra has never transported similar goods on earlier occasions from Manjharia godown to Nepal. There is no evidence, brought on record by the Revenue to rebut the argument of the Respondent that pulses were meant for distribution/sale only within India. Even if is assumed that bringing of pulses to Manjharia godown was intended for Nepal, still this act will come within the domain of 'preparation' and not an 'attempt' as per the case law of State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. 4.2 There is no other statement from any person in these proceedings that the pulses under consideration were to be exported to Nepal, except intelligency/information of the departmental officers which has to be considered as a 'heresay' and cannot be taken as an evidence. Accordingly, it is held that the impugned pulses were not liable to confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to have been given under a free atmosphere, inasmuch as the appellants being poor residents of a village situated on the border are always under the influence of the BSF Officers and would write whatever the Officers want them to write. We note that apart from the fact that there was a statement by Md. Kalu Sk. the voluntary character of which is doubted, we find that there was no attempt on the part of the appellant to export the goods to Bangladesh. As such, by extending the benefit of doubt to the appellants, we set aside the impugned Order of confiscation of Sarees of Indian Origin and for imposition of penalty upon both the appellants. As a result, both the appeals are allowed with consequential reliefs to the appellants. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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