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TMI Blog2016 (9) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... d redemption by imposing a redemption fine of Rs. 20 lakh which is to be appropriated by encashment of bank guarantee furnished by appellant M/s. Laxmi Narayan Udyog Pvt. Ltd., Kolkata (Main Appellant). Penalties of Rs. 5.00 lakh have been imposed upon appellant M/s. Laxmi Narayan Udyog Pvt. Ltd. and Rs. 2.00 lakh each upon appellants Shri Indrajit Jash (Director of M/s Laxmi Narayan Udyog Pvt. Ltd.) and Shri Ranjit Kumar Kundu under Section 114 of the Customs Act 1962. 2. Shr Arijit Chakraborty (Advocate) appearing on behalf of the appellant argued that on 03.07.2006 an information was received by the department from BSF that huge quantities of sugar are stored in the house of one Amal Mali for illegal export to Bangladesh. That as per the Revenue the information was supported by voluntary statement of Shri Yunus Mondal, an apprehend person in a BSF seizure as per S/Case No.40/Exp/CIIBSF/Hili/06-07 dt. 03.07.2006. No such statement has been relied upon by the department. That on that basis officers searched certain premises and seized sugar/empty sugar bags as detailed in paragraph-2 of the OIO dated 30.11.2007. It is the case of the Learned Advocate that no documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se which was also procured from Shri Amal Mali. That Shri Indrajit Jash, Director of the main appellant in his statements dt. 01.08.2006 and 29.08.2006 has admitted that sugar was stored in the godowns for export to Bangladesh and that appellant was also aware that permission from Directorate of Sugar, New Delhi was required as communicated by AC, Malda Division vide C.No.VIII(10)6/Sugar/MLD-AU/Cus/06/392 dated 27.04.2006. Learned AR made the bench go through paragraph-6 of OIO dt. 30.11.2007 and strongly defended the adjudicating authority s OIO dt. 30.11.2007. 4. Heard both sides and perused the case records. It is the case of the Revenue that 1866 quintals of sugar seized from six godowns as per paragraph-2 of the OIO dated 30.11.2007, were meant for illegal export to Bangladesh. It is observed that paragraph-2 of the OIO dt. 30.11.2007 refers to the statement of one Shri Yunus Mondal who was apprehended by BSF in another case of attempted illegal export to Bangladesh. That consignment was also procured from Shri Amal Mali. However, on a specific query from the bench about the alleged statement of Shri Yunus Mondal, Learned AR submitted that there is no such statement on the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also indicate that before the date of seizure main appellant was in the possession of legally procured sugar. It is observed from the findings of Adjudicating Authority that only as per a letter dt. 10.05.2006 from Ministry of Consumer Affairs, Food and Public Distribution, sale of sugar for domestic or export/purposes was restricted under Sugar(Control) Order 1966. There is no evidence on record that sugar was procured after 10.05.2006. After provisional release of seized goods to the main appellant also the sugar has been disposed off by the appellant as per an order dt. 18.09.2006 passed by Calcutta High Court in W.P.No.20555(W) of 2006 filed by the main appellant. There is no documentary evidence in the form of even a statement to convey the sugar seized from the godowns was meant for clandestine export to Bangladesh. On the contrary main appellant had documentary evidence to confirm that sugar has been acquired licitly and efforts were being taken to seek export permission from the appropriate authority as the restrictions were imposed only with effect from 10.05.2006. 5.1. On the issue of attempt and preparation this bench in the case of Babban Khan vs.- Collector of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers (Supra) held as follows in paragraphs 13 and 31 :- "13. Well then, what is an attempt ' Kenny is his' Outlines of Criminal law defined attempt to commit a crime as the last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control . This definition is too narrow. What constitutes an attempt is a mixed question of law and fact, depending largely on the circumstances of the particular case. Attempt defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the ides or intention to commit an offence. In the second stage, he makes preparations to commit it. the third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be `criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such an act or acts were deliberately done, and manifest a clear intention to commit the offence ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported." In view of the above ratio laid down by the Apex Court even intention to export and preparation alone are not sufficient to constitute an attempt and has to be associated with a positive penultimate commission/act, depending upon the circumstantial evidences available in each case. 5.3. In the present proceedings before the bench also there is no evidence suggesting illegal export of seized sugar, much less any evidence indicating attempt to illegal export on the part of the appellants. In the case of Ram Krishna Dutta vs.- Commissioner of Customs, (Prev.), Kolkata (Supra) even when sugar was moving in a truck it was held by this bench that there is no attempt to export sugar illegally when documents of legal acquisition are made available. Any violation of a procedural requirement under Sugar (Control) Order 1966 that too for the period after 10.05.2006, for local movement/ control of sugar, cannot be made as the basis for confiscation of the sugar under Section 113 of the Customs Act, 1962. These provisions are applicable only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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