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TMI Blog2019 (4) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... oods 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. Admittedly the goods were booked for export by Perez Hender Valmore. It is not the case of DRI that the said Perez Hender Valmore has any link or relation or concern with the Appellant. There must be an act or acts, by the Appellant, done towards the actual physical movement of the goods with intention to take them out of India. According to DRI also, the said Shri Perez Hender Valmore and not the appellant, attempted to export 1641 pieces of cut and polished dia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to the courier by one Perez Hender Valmore for export to Italy. He had also furnished a declaration to the courier company to the effect that the packet contained garments and other personal goods only. The courier company prepared an Airway Bill with the above person as the consignor and one Giorgio Borrelli (Italy) as the consignee. Shortly after preparation of the Airway Bill, DRI officers, having received intelligence to the effect that diamonds were likely to be couriered through DHL, stepped in and after inspecting the goods, i.e. 1641 diamonds, seized the packet under a Panchanama. The valuation of the seized diamonds was got done under subsequent Panchanama on 26.8.2010. Subsequently, on 27.8.2010, the Managing Director and As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act read with relevant provisions of the Foreign Trade (Development and Regulation) Act/Rules and that the noticees were liable to be penalized under Section 114 of the Act. The said Perez Hender Valmore did not respond to the show-cause notice. The Appellants, in their reply to the show-cause notice, claimed ownership of the diamonds and prayed for permission to redeem the same. 3. The Commissioner of Customs, CSI Airport, Mumbai, vide earlier adjudicating order dated 10.2.2011, ordered for confiscating of diamonds u/s 113 ibid with option for redemption by the courier company M/s. DHL on payment of fine of ₹ 30 lakhs ( since the diamonds were seized from their possession ) and also imposed a penalty of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be condoned. 4. The learned Commissioner vide impugned Adjudicating Order dated 16.12.2011 ordered for confiscation of the diamonds in issue, i.e. 1641 pieces of cut and polished diamonds , u/s. 113(d) ibid and granted option to the Appellants, being owner of the diamonds, to pay a fine of ₹ 20 lakhs in lieu of confiscation u/s.125 ibid. 5. We have heard learned counsel for the Appellants and learned Authorised Representative for the Revenue and perused the records. Learned counsel for the appellant submitted that there was no preparation or attempt for export of the diamonds on the part of the Appellant. It is the learned counsel s submission that confiscation under Section 113(d) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation:- xxx xxx (d) 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. Section 113(d) specifically provides that the export goods are liable for confiscation, if they are exported or attempted to be exported contrary to any prohibition imposed by or under Customs Act or any other law for the time being in force. The fine of ₹ 20 lakhs on the appellants were imposed for the reason that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. Admittedly the goods were booked for export by Perez Hender Valmore. It is not the case of DRI that the said Perez Hender Valmore has any link or relation or concern with the Appellant. There must be an act or acts, by the Appellant, done towards the actual physical movement of the goods with intention to take them out of India. That alone, in our view, would constitute an attempt to export the goods. Attempt must also have relevance to the taking of the goods out of India. We are not concerned with the actual completion of the exportation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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