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TMI Blog2022 (4) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... icular set of facts would not constitute a substantial question of law. - Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of any principle of law, the issue raises a mere question of fact. In the case of AN GUHA CO. VERSUS COLLECTOR OF CENTRAL EXCISE, BHUBANESWAR [ 1994 (6) TMI 113 - CEGAT, CALCUTTA] , the CESTAT, West Zonal Branch, Mumbai held that it is not necessary for the department to establish a fact with mathematical precision. Once the presumption as to the existence of a fact is raised against the assessee that the input has not been transported in the vehicle mentioned in the invoices, it is reasonable to say that the inputs were not received in the factory. In VINOD SOLANKI VERSUS UNION OF INDIA ANR. [ 2008 (12) TMI 31 - SUPREME COURT] , the Supreme Court considered the effect of retraction of the statement in proceedings of penalty under Foreign Exchange Regulation Act, 1973. The Supreme Court held that indisputably a confession made by an accused would come within the purview of Section 24 of the Indian Evidence Act, 1872. The proceedings under the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out being brought within the limits of the customs area, there can be an attempt to export the goods in contravention of the prohibitions. To attract the first part of Section 113(d), the process of movement of the goods for the purpose of taking them out of India must be shown to have began. Incriminating materials on record - HELD THAT:- The attempt to export prohibited goods should be appreciated from the point of inquiries from the foreign buyers for the prohibited substance consequent upon which the respondents made arrangements for procuring the same from Aurangabad. After the arrangements were made, the goods were in fact transported from Aurangabad albeit as the Benzahydrol Powder for onward exports via Vapi, when the same were intercepted and seized pursuant to the intelligence inputs - The overt act of physical movement of the prohibited substance was proximate to the intention of respondents to take them out of India which thus constitutes an attempt to export as per Section 113(d) of the Customs Act, 1962. The intention of the statute is to proceed against the offender attempting to export goods contrary to the provisions of the Act. Similarly, a personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Customs) as substantive evidence connecting the respondents herein with the contravention of the provisions of Section 113(d) of the Act. The Tribunal, in the case on hand, has not examined the Order in Original passed by the Commissioner (Customs) in the manner required of it and also failed to look into the cogent, convincing and thumping evidence on record to find out if the crucial findings of the Commissioner (Customs) were justified - It is true that the order of the Tribunal cannot be said to give rise to a substantial question of law merely because the High Court is of the view that it would have come to a different conclusion on the same evidence; however, where the appreciation of the evidence is wholly unsatisfactory and the crucial aspects of the evidence have been missed, it is case of finding or conclusion which no person properly instructed on the facts and the legal position would have reached. That is what has happened in the present case. The Tribunal committed an error in disturbing the order passed by the adjudicating Commissioner - substantial question of law as framed by this Court is answered in favour of the Revenue and against the respondents-asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn. The surveillance was continued on 06.03.2009. During the surveillance on 05.03.2009 and 06.03.2009 respectively till the afternoon, no one came forward to receive the said packet/parcel. Therefore, the officials of the DRI entered into the godown premises to locate and verify the said packet/parcel. One Nandkishore Choudhary, the Proprietor of M/s. Choudhary Roadways, was available in the said premises and he confirmed the receipt of consignment covered under the Lorry Receipt No.22987 dated 03.03.2009 from Aurangabad and produced the documents related to the said parcel, i.e. LR No.22987 and bill No.124 dated 03.03.2009 of M/s. Perfect Chemicals, declaring the said goods as Benzahydrol Powder . The consignment covered under the said Lorry Receipt was found to be one woven sack bag weighing 25 kgs. net with the LR No.22987 written on it. As no one came forward to claim the parcel, the parcel was opened and three representative samples of 25 gms. each were drawn. The said parcel was taken over for further verification under the panchnama dated 06.03.09 (RUD-1) with instruction to the claimants to approach the DRI office for claiming the consignment. (3) After leaving the god ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.2009; that Shri Sanjay told him over telephone not to disclose his real name and to get the delivery of the parcel from the transport company disclosing his name as Shri Anuj Shah, therefore he had signed in the letter of authority as Anuj Shah. Shri Sanjaybhai also told him that the names and addresses shown in the said documents were bogus. He submitted both the above letters and the Bilty. He further stated that Shri Sanjaybhai also directed him to rebook the same parcel in Surat-Ahmedabad Transport Co., GIDC, Vapi after taking delivery from M/s. Choudhary Roadways, Phase-I, Opp: GEB Office, GIDC, Vapi and to hand over the Invoice of M/s. J.B. Enterprise to the transport company (i.e. Surat- Ahmedabad transport); that he was not told what the parcel contained and hence he was unaware of its contents; that the above Authority Letter and Invoice were signed by Shri Sanjaybhai. He further stated that he, along with Shri Shivabhai left Surat via Palsana on his bike and reached M/s. Choudhary Roadways, Vapi, at about 16:15 hours. He produced the above Bilty (L/R) in the said transport company to the person available there for taking delivery of the goods; that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he came to know from their (Sanjaybhai s) conversation that they were exporting the goods which they bring from Aurangabad out of the country. But he did not know whether they were exporting in the same form or were exporting in some other form manufactured out of it; that he was not getting any extra money for this work of taking delivery of goods from Vapi nor did he demand anything extra from them; that he did not know what else Shri Sanjaybhai was doing; that he did not know to which country they export the goods; that the detained goods did not belong to him: that Shri Sanjaybhai had only one office at Opera House. (5) The further statement of Shri Jayeshbhai Chunibhai Vadaliya was recorded under Section 108 of the Customs Act, 1962, on 07.03.2009 (RUD-15) wherein, inter alia, he reiterated that he was sent by Sanjaybhai to Vapi on 6.3.2009 for taking the delivery of the parcel from M/s. Choudhary Roadways, Vapi, and to re-book the same in the Surat-Ahmedabad transport; that Sanjaybhai had not told him what the parcel contained; that he had disclosed his name as Anuj Shah before the said Choudhary Roadways as per the instructions of Sanjaybhai. (6) Jayeshbhai Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhesariya from Rajesh Joshi of Aurangabad in different lots. The consignments were transported from Aurangabad to Vapi under a bill of a fictitious company, namely, M/s. Perfect Chemicals, Aurangabad. One another fictitious company, viz. M/s. Bhatia Chemicals, Vapi, was shown as the consignee. The transportation was made through M/s. Choudhary Roadways and the Shrinath Travels. Sanjay Gadhesariya, in his statement recorded under Section 108 of the Customs Act dated 24th June 2009 stated that about 160 kgs. of Ketamine was received through M/s. Choudhary Roadways and about 25 kgs. through the Shrinath Travels. It is also the case of the Revenue that Sanjay Gadhesariya is in the business of illegal export of Ketamine Hydrochloride powder. Before the seizure by the DRI of 25 kgs. of the Ketamine Hydrochloride powder, he had already improperly exported approximately 165 kgs. of Ketamine to the various foreign buyers. It is the case of the Revenue that 25 kgs. of Ketamine from the seized consignment was also to be exported by Sanjay Gadhesariya following the same modus operandi which he had adopted for the past exports. TESTING OF SAMPLES : 9. The samples drawn from the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommit an offence under the said Act or to cause such offence to be committed. 12. A show-cause notice came to be issued to the respondent under Section 124 of the Act 1962, calling upon the respondent to show-cause as to why :- (i) The 165 kgs. of Ketamine Hydrochloride Powder valued at ₹ 57,75,000/- (local market value) and international value of about ₹ 16.50 crore, illegally exported by them, should not be held liable for confiscation under Section 113(d) of the Customs Act, 1962. However, since the goods are not available for confiscation, why fine in lieu of confiscation should not be imposed on them. (ii) The 25 kgs. of Ketamine Hydrochloride Powder valued at ₹ 8,75,000/- and international value of about ₹ 2.50 crore, detained from M/s Choudhary Roadways, Vapi and subsequently seized under panchnama dated 27.03.09, should not be confiscated under Section 113(d) of the Customs Act, 1962. (iii) Penalty should not be imposed on each of them, individually, under Section 114(i) of the Customs Act, 1962. 13. At the end of the adjudication of the above show-cause notice, the Commissioner proceeded to pass the following order : (i) I order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e persons who received the money in their account on such sale, but nowhere it is appearing as to when the goods were exported by Appellant. Even after investigation at courier company, there is no findings as what is the mode of export and to which country the exports were made. It is alleged that the Appellant had received 165 Kgs of Ketamine in past. The show cause notice alleges that the goods were sent by Shri Rajesh Joshi to Shri Sanjay and that Shri Rajesh Joshi was introduced to Shri Sanjay by Shri Nagesh Barsale. Shri Rajesh Joshi who has allegedly supplied such goods cannot be even traced by the investigating officers inspite of the fact that Shri Nagesh Barsale was knowing him. The Appellant has agitated the allegation of receipt of impugned goods. It is also a fact that neither the Incharge of Choudhary Roadways at Surat nor Shri Choudhary at Vapi knows Shri Sanjay. In such a case it was necessary to find the source who had supplied the alleged quantity to the Appellant. Only on the basis of statement of Shri Jayesh it cannot be concluded that he had collected the ketamine consignments from transporter on behalf of Appellant. The supplier of goods has not been found nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned goods in transporting, packing the export consignments. In such case we find that only on the basis of statements, it cannot be concluded that the Appellant had exported 165 Kgs of Ketmaine HCL. As regard 25 kgs of Ketamine seized from Choudhary transport, I find that no evidence has been brought on record to show that the Appellant was attempting to export the same. No evidence of Appellant having in contact with any foreign buyer for export of said quantity is on record. No export documents were prepared or no shipping bill airway bill was prepared. In such case it cannot be said that the Appellant was attempting to export the goods. my view is also based upon the judgment in case of Ranjit Export Pvt. Ltd. 1985 (21) ELT 353 (Mad.). Similar view has been taken in orders in case of Kashmiri Vs. Collector 1991 (57) ELT 284 (TRI), Sripar Upadhyay 2001 (138) ELT 768, Suresh Jhunjhunwala 2005 (183) ELT 60 (CESTAT), Bhanbhai Khalpabhai Patel 1987 (28) ELT 489, K. Baburao Othrs 1986 (26) ELT 766. 6. In view of my above findings I hold that the Appellants cannot be accused of export of 165 Kgs of Ketmaine HCL or of attempt to export 25 Kgs of Ketamine seized from Choud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 113(d) of the Act 1962 could not be passed. He would submit that the penalties under Section 114(i) of the Act 1962 have been imposed on Sanjay and Kishan having regard to the role played by both in illegally exporting the Ketamine. 19. Mr.Vyas would submit that there are statements of the respondents herein recorded under Section 108 of the Act practically admitting everything, more particularly, the mode and manner in which the 165 kgs. of the Ketamine was illegally exported in the past and also in what manner the 25 kgs. of the Ketamine which was to be exported but which came to be seized by the DRI officials. 20. Mr.Vyas would submit that the retraction of such statement recorded under Section 108 of the Act would not absolve the respondents from their liability to pay the penalty. 21. In such circumstances referred to above, Mr.Vyas prays that both the appeals be allowed as there being merit in the substantial question of law raised by the Revenue. He prays that the substantial question of law be answered in favour of the Revenue and against the respondents/assessees. SUBMISSIONS ON BEHALF OF THE RESPONDENTS/ ASSESSEES : 22. Mr.D.K.Trivedi, the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion that falls for our consideration is, whether the Tribunal committed any error in passing the impugned order. SCOPE OF APPEAL UNDER SECTION 130 OF THE ACT 1962 : 30. At the first blush, it would appear that what has been decided by the Tribunal could be termed as a question of fact. Whether a consignment of Ketamine Hydrochloride Powder was improperly exported or there was an attempt to improperly export, would essentially be a question of fact. However, even while deciding the same, if the Tribunal overlooks certain basic principles of law applicable to the case on hand and records a finding which could be termed as perverse, then definitely, such decision of the Tribunal would give rise to a question of law. 31. Although the expression substantial question of law has not been defined in any Act or in any of the statutes, yet the true meaning and connotation of this expression is now well-settled by various judicial pronouncements. It was observed by the Supreme Court in Sir Chunilal V.Mehta Sons Ltd. vs. Century Spg. Mfg. Co. Ltd. [1962 AIR 1314 : 1962 SCR Supl. (3) 549] that a question of law would be a substantial question of law if it directly or indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must look into the observations of the Supreme Court in the case of Collector of Customs, Madras and others vs. D. Bhoormall reported in AIR 1974 SC 859, which reads thus: 31 It cannot be disputed that in proceeding for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasicriminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs, absolute certainty is a myth, and as Prof. Brett felicitously puts it all exactness is a fake El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work a day world. The law does not require the prosecution to prove the impossible. All that it requires is the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S.95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. (See Sarkar on Evidence, 15th Edition, pp. 58-59) In the words of Denning LJ (Bater V.B, 1950, 2 All ER 458, 459) It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of law, Hodson, LJ said Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the person concerned in it. On the principle underlying S.106, Evidence Act, the burden to establish those facts is cast on, the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in Law of Evidence , (12th Edn. Article 320, page 291), the Presumption of innocence is, no doubt, presumption juris, but every day s practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property , though the latter is only a presumption of fact - Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act 1962 reads thus : 114. Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act whichever is the greater; 41. The order passed by the Adjudicating Authority and the Tribunal are based on the statements of the opponents recorded under Section 108 of the Act 1962 and also on the statements of the other persons involved in the racket. 42. Sections 107, 108 and 125 respectively of the Customs Act, 1962 relevant for the purposes of this case are quoted as below: SECTION 107. Power to examine persons.--Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with the smuggling o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 43. The Supreme Court, while interpreting Sections 107 and 108 respectively of the Customs Act, held in Romesh Chandra Mehta vs. State of West Bengal, MANU/SC/0282/1968 : (1969) 2 SCR 461, that any statement made by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence, but he being an officer concerned or the person in authority, Section 24 of the Indian Evidence Act would be attracted and which provides that a confession made by an accused is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against accused persons, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 44. In Collector of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the foreign exchange acquired has been used for the purpose for which permission to acquire it was granted and not for mere possession thereof. The Parliament advisedly did not make any provision placing the burden of proof on the accused/ proceedee. 49. In para 22 the Supreme Court said : 22. It is a trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the Court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. [See Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras, MANU/SC/ 0403/1999 : (1999) 6 SCC 1]. 50. In K.I. Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, MANU/SC/2070/1997 : (1997) 3 SCC 721, it was held that a person suspected by a Customs Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that the Court would seek assurance getting corroboration from other evidence adduced by the prosecution. WHAT WOULD CONSTITUTE AN ATTEMPT : 52. In the matter of petition of R.Maccrea MANU/UP/ 0046/1893 : ILR [(1893) All. 173], Knox, J. observed as follows :- It is no doubt most difficult to frame a satisfactory and exhaustive definition which shall lay down for all cases where preparation to commit an offence ends and where attempt to commit that offence begins. The question is not one of mere proximity in time or place. Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practised upon him may be a very conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt using the word in the larger sense, any person does any act towards the commission of an offence he shall be held to have committed an 'attempt' within the meaning of this section. That I take to be the real meaning and drift of the section, differentiating in a marked manner the definition of 'attempt' in the definition of 'attempt' in the Indian Penal Code and the accepted English doctrine. 54. In Queen Empress vs. Luzman Narayan Joshi (1899) 2 Bom. LR 286, Sir Lawrence Jenkins, C.J., defined 'attempt' as an intentional preparatory action which failed in object through circumstances independent of the person who seeks its accomplishment. In Queen Empress v. Vinayak Narayan Bhartye (1899) 2 Bom. LR 304, the same learned judge defined attempt as when a man does an intentional act with a view to attain a certain end, and fails in his object throughout some circumstances independent of his own will . 55. In Emperor vs. Ganesh Balwant Modak MANU/MH/0005/ 1909 : ILR (1910) 34 Bom. 378, a Division Bench of the High Court at Bombay, consisting of Chandavarkar and Heaton, JJ., held as follows :- Under the Indian Penal Code (Act XLV of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1955) AWR 53, a Bench of the High Court of Judicature of Andhra at Guntur, consisting of Subba Rao, C.J., as he then was, and Satyanarayana, J., while defining attempt to commit murder pointed out as follows :- The crucial words in section 511, Indian Penal Code, are that the accused should have done the act, 'towards the commission of the offence.' The two illustrations appended to the section bring out the intention of the Legislature. There are decided cases which recognise the existence of three stages in the commission of crime (1) intention to commit, (2) preparation to commit, and (3) attempt to commit. If the attempt results in the actual commission of the offence, the crime is complete. But the Indian Penal Code makes the attempt also an offence, if the accused does any act towards the commission of the offence, the distinction between preparation and attempt may be clear in some cases, but in most of the cases the dividing line is very thin. Nonetheless it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intends to commit that particular offence; and (ii) he, having made preparations and with 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. 65. In Malkiat Singh vs. State of Punjab MANU/SC/ 0534/1969 : 1970 CriLJ 750, three learned judges of the Supreme Court dealt with a case where paddy, booked by a firm in Punjab to consignee to Delhi, was carried in a lorry driven by the first appellant and the lorry was stopped by the police at a place which was 32 miles from Delhi, that is, inside the State of Punjab (the Punjab Delhi boundary was 18 miles from Delhi), and the appellants, along with others, were prosecuted and convicted for an offence under section 7 of the Essential Commodities Act, and the Supreme Court, while holding that no offence has been committed by the appellant nor was there an attempt to commit an offence analysed the question and expressed its opinion in the following terms : ... It was merely a preparation on the part of the appellants and as a matter of law a preparation for committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order'. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under S.7 of the Essential Commodities Act. 66. In Sudhir Kumar Mukherjee vs. State of West Bengal (1974) II SCJ 2, two learned Judges of the Supreme Court, referred to its earlier pronouncement in Abhayanand vs. State of Bihar AIR SC 1698, but however, on facts held that what the accused did in that case was a definite step towards the commission of cheating, though it was not the penultimate step. 67. In State of Maharashtra vs. Moh. Yakub MANU/SC/ 0239/1980 : 1980 CriLJ 793, the Supreme Court dealt with a case of an attempt of evasion of duty within the meaning of section 135(1)(a) of the Act. That was a case of an appeal by the State of Maharashtra against an order of acquittal of the respondents by the High Court. The facts run as follows :- At about midnight a jeep, driven by respondent 1, and a truck stopped near a bridge at a creek and while the accused started removing some bundles from the truck and placing them aside on the ground, the customs officers, who were following them o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar MANU/SC/0124/1961 : 1961 CriLJ 822 there is a distinction between 'preparation' and 'attempt'. Attempt begins where preparation ends. In sum, a person 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. Chinnappa Reddy, J., concurring with Sarkaria, J., stated the result of search and research on the question in paragraph 32 of the judgment as follows :- Let me now state the result of the search and research. In order to constitute 'an attempt', first, there must be an intention to commit a particular offence, second some act must have been done which would, necessarily have to be done towards the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in the authorities are so vague as to be useless in practice. The one most commonly cited is contained in the judgment of Parke B. in R. v. Eagleton (1855) dear 515. The mere intention to commit a misdemeanour is not criminal. Some act is required and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are'. When this portion of the judgment is carefully examined, it will be seen that Baron Parke was not setting out a definition of attempt. He was merely laying down certain necessary characteristics of the crime; * * * The position can perhaps be summed up thus. So soon as attempt emerged clearly as a specific crime at common law the courts were faced with the task of defining it, and this was not achieved quickly. Parke B. was concerned to make one point plain and this was that there must be an actus reus, and it must consist in some step taken to achieve the desired end. The whole series of acts from the first done after the purpose was first conceived, along the line unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods for the purpose of taking them out of India must be shown to have began. 73. In the context of the present case, we cannot lose sight of the definition of 'export' found in Section 2(18) of the Act. The essential ingredient of export is the taking out of India. The acts complained of must fall in the course of movement of the goods with an intention to take them out of India. All other acts done anterior to this step, namely, movement would only partake the character of preparations. If the respondents have done any act towards the exportation, namely, taking of the goods 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. There should be a direct physical movement towards the taking of the goods out of India after all the preparations are made and which preparations may also fall within the satisfaction of the provisions and completion of the formalities under the Act. There must be an act or acts done towards the actual physical movement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shore Jajodia were the persons concerned for the mis-declaration of the goods and values of the goods exported and hence liable for penal action under Section 114(1) of the Customs Act, 1962, M/s. Euresian Equipments and Chemicals Ltd., Calcutta and its directors S/Sri Laxmi Prasad Jajodia, Manick Chand Jajodia and Jugal Kishore Jajodia were called upon to explain the matter in writing and to show cause to the Collector of Customs, Calcutta, why penal action under Section 114 of the Customs Act, 1962 should not be taken against them. 76. The validity of the above said show cause notice was challenged by the exporter in a writ petition. The learned single Judge rejected the writ application holding that if the export is made on the basis of incorrect declaration under Section 12(1) of the Foreign Exchange Regulation Act, the same would amount to contravention of the Customs Act. On appeal, the matter was referred to the Full Bench and the following questions of law were raised before the Full Bench: (1) Whether, by virtue of Section 23A of the Foreign Exchange Regulation Act, 1947, the provisions of Sections 113 and 114 of the Customs Act, 1962 are attracted for the contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve earlier observed the liability of the goods to confiscation arises under Section 113(d), as soon as the goods are attempted to be exported and the attempt to export the goods necessarily precedes the actual export of the goods. Goods become liable to confiscation as soon as the attempt is made. There is no provision in the Act to suggest that this accrued liability is wiped out or extinguished with the exportation of the goods. It may be that after the goods had in fact been exported the liability of the goods to be confiscated may not be enforceable by actual confiscation of the goods. Personal penalty of any person who, in relation to the goods, does or omits to do any act which act or omission renders the goods liable to confiscation under Section 113 or abets the doing or omission of such an act has been provided in Section 114. This provision is attracted as soon as the goods incur the liability to confiscation under Section 113 and such liability, as we have earlier held, arises when the goods are attempted to be exported contrary to any prohibition. It is to be noted that at the time when the goods are sought to be exported they are undoubtedly export goods within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd question which came up for consideration before the Division Bench and which has been referred to the Full Bench in the manner indicated above. INCRIMINATING MATERIALS ON RECORD : 78. In the case on hand, a consignment of the Ketamine Hydrochloride Powder of 165 kgs. had already been exported. If the goods had already been exported, the question of confiscation would not have arisen and that has been rightly observed by the adjudicating Commissioner. The adjudicating Commissioner rightly held that since the goods were not available for confiscation, there is no point in ordering confiscation. Therefore, he proceeded to impose penalty in terms of Section 114 of the Act, which is in accordance with the provisions of the Customs Act. 79. The investigation revealed that the respondent had illegally procured the Ketamine Hydrochloride from Aurangabad for onward export. The Ketamine Hydrochloride is a commonly abused recreational drug known for its sedative qualities. By the Notification No.67(RE-2007) 2004-2009 dated 27.12.2007 issued by the Director General of Foreign Trade, the export of the Ketamine Hydrochloride Powder without the permission/no objection certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature on them and stated that the delivery of goods of the bilties(L/Rs) shown at Sr no.1 to 6 were taken by him from Choudhary Roadways, Vapi at the instructions of Shri Sanjaybhai Gadhesariya; that the goods were brought from Waluj, Aurangabad. Shri Sanjaybhai used to come mostly alone in his Innova car while he used to come on motor bike No. GJ5 DB 745; Shri Sanjay never came to the office of transporter, Choudhary Roadways with him, but he used to stay away in this car; that after taking delivery of the goods, he used to take the same in his car to Surat; that he did not remember the registration number of the car, but the word Venkatesh was written on the car; That Shri Kishanbhai had come once with Shri Sanjaybhai to take delivery of one parcel, but he did not remember the exact parcel whose delivery they had come for; Shri Kishanbhai Manjibhai stays at Bungalow No. 22, Shyam Sunder Society, A.K. Road, Varaccha Surat.He was further shown two photographs, one photograph assigned No.1 and the other photograph assigned No.2 and on seeing the Photograph No.1, he stated that the said photograph was of Shri Kishanbhal Manjibhai Gadhesariya and the Photograph No.2 was of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Ghadesariya (respondent) in his statement dated 26.6.2009 had confirmed that the authorization was signed by him and was given to Jayeshbhai Vadaliya for taking delivery of consignment transported from the Aurangabad. 84. The statement of Sanjay was recorded under Section 108 of the Customs Act, 1962 on 21.4.2009 and 29.04.2009 respectively, wherein he has stated, he knew Shri Jayeshbhai Vadaliya because he is a relative of his brother, Shri Kishanbhai and son of Shri Chunilal Vadaliya; he did not know whether he (Jayeshbhai Vadaliya) did any other side business ... 85. In his further statement which was recorded on 24.6.2009 Sanjaybhai stated that : he had ordered for the delivery of the consignment of Ketamine seized vide panchnama dated 27.3.2009 from Aurangabad to Vapı; he had purchased the said goods from one Shri Nagesh Barsale and he had a person named Shri Rajesh Joshi from whom the material was purchased; Shri Rajesh Joshi's mobile number was 9822951313; that 2or 3 years ago Mr. Nagesh Barsale was contactable on 0240- 2345652 but he did not have his present mobile number; in the year 2005-2006, he came in contact with them through B2B site; he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h time which were sent from Aurangabad to Vapl through Choudhary Roadways and from Vapi the said parcels were either re- booked in some transport company for onward transport to Surat or were brought in personal vehicles. Accordingly, in all about 25 Kgs of Ketamine had been received by him from Aurangabad to Surat by Shrinath Travels and about 160 Kgs of Ketamine had been received in the lot of 5-6 consignments through Choudhary Roadways Vapi; On being asked as to in whose names Ketamine ordered by him was booked from Aurangabad and under what documents he had received the consignment, he stated that from Aurangabad, Ketamine was booked by showing consignee as M/s Bhatia Chemicals. The goods booked through Shrinath Travels were received by him without any documents from Aurangabad and in respect of goods booked through Choudhary Roadways, bills of M/s Perfect Chemicals were sent along with the goods and the consignee name was shown as Bhatia Chemical, Vapi. On being asked regarding the disposal of Ketamine procured by him from Aurangabad, he stated that most of the Ketamine procured by him was illegally exported to foreign buyers at UK, USA, Canada, except 20 to 30 Kgs which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific, to whom the parcel was sent by him from Navsari used to tear off the outer packing and booked for overseas buyers as per the address written on the inside packing of the said parcel; that earlier Shri Harshad was working with M/s Pacific Express Corp and later on he started working for a company called Swiss International; that after booking the parcel, Shri Harshad or persons of M/s Pacific Express Corporation used to send him tracking number of the parcels either through SMS on his mobile number 9375093755 or verbally on phone; that thereafter he used to forward the said tracking number to customer at abroad from his email address [email protected] or raghunaath@ hushmail.com along with the tracking sites to enable the customer to track his parcel shipped from India; that Shri Jayesh Vadaliya did not know the contents of the parcels; that Purohit Courier used to charge ₹ 100 toRS. 200 per parcel upto Mumbai and the person from Mumbai used to charge according to the weight slab i.e. ₹ 1500 to ₹ 3500- 4000 per consignment. On being asked as to how the payments from his Customers abroad was received by him, he stated that the payment from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the invoice the consignor was shown as M/S 1 B. Enterprises and the consignee was shown as M/s. Bhatia chemicals, D-4/11 GIDC, Sachin, Surat; that the signature appearing on the invoice as authorized signatory was signed by him. He further reproduced the said signatures in his above said statement; that the above letter of M/s Bhatia Chemicals and bill of J.B. Enterprises were prepared by him on his laptop and the prints out of the same were taken in his above office at Bombay Market; On being asked regarding the address of the office of the above said companies as well as the mobile number i.e. 9979386867 mentioned on the above said bill and letter, he stated that both the addresses are bogus and the mobile number 9979386867 was being used by him for the last 3-4 years and the said mobile connection is not in his name as the same was arranged by one of his friend. Regarding the payments of bill of the above said mobile number, he stated that the connection was prepaid connection. He further stated that the above letter and invoice were given by him to Shri Jayesh Vadaliya, for taking the delivery of the parcel from Choudhary Roadways, Vapi and to rebook the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing numbers 21098 dated 09.05.2008, 21904 dated 04.09.2008, 22040 dated 23.09.2008, 22157 dated 11.10.2008, 22489 dated 08.12.2008, 22715 dated 19.01.2009 of M/s Choudhary Roadways, produced by Shri Nandkishore R. Choudhary, Proprietor of M/s Choudhary Roadways under his statement dated 19.03.2009; that he had gone through the same and confirmed that Ketamine Hydrochloride powder was transported from Aurangabad to Vapi as ordered by him to one Shri Rajesh Joshi of Aurangabad. On being asked regarding the documents given by the supplier at the time of booking of above said Ketamine powder at Aurangabad for transportation to Vapi, he stated that on all the occasions bills of M/s Perfect Chemicals, Waluj, Aurangabad were given at the time of booking and after booking, consignee copy of LR was sent to Surat through Shrinath Travels from Aurangabad; that Shri Rajesh Joshi used to inform him regarding dispatch of material through Choudhary Roadways and dispatch of LR for collecting the material, through Shrinath Travels; that he used to collect the LR from Shrinath Travels at Surat and on all the occasions after collecting the LR either on the same day or the very next day, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [email protected] Password:-- (5) Name: Tradeboss.com Username: raghunaath Password:- (6) Name: Tradeholding.com Username: raghunaath Password He further stated that for marketing the product Ketamine, Viagra, Suhagra, Alprazolam, Diazepam etc. he had opened the above said B2B portals by mentioning fake name, address and contact numbers; that except his B2B portal in his Indiamart.com, he had shown the of his company Sudarshan Chemicals ; that he opened his B28 portal on tradevey. and Indiamart through internet in DRI office and the printouts of his company profile were taken in his presence and rest of the portals could not be opened as he did not remember the password; that he had seen the printouts and put his dated signature on the same. Regarding the IEC code of Raghunaath Agencies, he stated that he aid not have any IEC number and the company was first floated on the B2B portal for taking orders from foreign buyers and also illegal export of Ketamine, Vlagro. Alprazolam, Diazepam etc, were made by using the name of company as Raghunaath Agencies . Regarding any export documents prepared by him for Ketamine exports, he stated that he had prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is aforesaid 3 firms, he stated that he had not taken any NOC from Narcotic Commissioner for the exports. On being asked regarding the various mobile phones belonging to him or being used by him, he stated the mobile numbers as under : (1) 9979386867 (2) 9979386900 (3) 9375093755 He further stated that the mobile connection stated at serial number (1) and (2) are prepaid connections arranged by his friend and are in other names; that the mobile number 9375093755 is the mobile number he used and it is in the name of one of his friend Shri Sunil Kakadiya Mumbai. Regarding usage of above said mobile numbers, he stated that mobile number 9979386867 was being used by him for procurement of Ketamine and its exports. The mobile number 9979386900 was being used by him mainly for dealing with Shri Vinay Upadhyay of Rajkot for Courier purpose and sometimes with other persons also; that the mobile number 9375093755 was being used for his personal use including purchase of medicines from India and other business of textiles, diamond etc. He was further shown panchnama dated 23/24.06.2009 under which his email account raghunaathagencies@ yahoo.com was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further shown e-mail print outs taken out from his email account available at page no.137,138,131 44 in file no.02 and on being asked, he stated that the same related to transfer of funds from foreign buyers through western Union Money Transfer against supply of Ketamine powder. On being asked regarding the name of the person who had booked parcels of Ketamine powder at Choudhary Roadways, Aurangabad, he stated that Shri Rajesh Joshi was managing everything including booking at Aurangabad and he only used to inform him on mobile regarding dispatch of goods and LR.; that he did not know the names of the persons who were going to Choudhary Roadways at as it was managed by Shri Rajesh Joshi. Regarding the whereabouts of the laptop being used by him, he stated that after knowing that his consignment of Ketamine was caught on 06.03.2009, he had broken the same and thrown away the pieces on the sides of the road from a moving car. On being asked regarding the whereabouts of all the 3 mobile phones being earlier used by him, he stated that the Sim cards of the said mobile connections and also the mobile instruments were crushed and thrown away by him. 87. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the change made the next day and further asked whether K (Ketamine) has been already shipped as it didn't arrive last week as requested by him. Further, In the email message available at pg. 24 the said J from [email protected] has written on 03.03.09 that the name of the Western Union was changed and also written that they have no stock of K (Ketamine) and hope to receive the delivery in the next day or two. Further, In the email message available at page no.22, Shri Sanjaybhai on 05.03.09 from his e-mail id raghunaathagencies @yahoo.com had intimated to [email protected] that the K (Ketamine) has already been shipped last week and they are expecting the connecting numbers at any moment. It was further intimated that the delay is because there are strict checks at the moment in the UK Customs. (v) At page no. 66 67, it appears that there is an e-mail sent by (A) Shri Sanjaybhai on 21.02.09 from his e-mail id [email protected] to one viagralad@hush. com from wherein he had written as under: On Sat, 21 Feb 2009 07:44:20 +0100 Raghunaath Agencies wrote: We have received ur email today ie, saturday morning....have waited for your emai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J from [email protected] has written, on 19.02.09, as under: Hi, I need 1KG of K then. Please only send 1KG. I will make the outstanding payments (Alp and Diaz) within the next day and send you the details as soon as possible. With the K... we require delivery VERY VERY QUICKLY. Unless it be here early next week, it is no use to us. So please send it quickly, and if it wont be early next week, please tell me now as we may not need the order in that situation, I look forward to hearing from you soon. Thanks, J. (vii) At page no.131, there is an e-mail sent by Shri Sanjaybhai on 28.01.09 from his e-mail id [email protected] to one viagralad@ hush.com wherein he had intimated to get the order collected from the Post Office. Further, in reply to the same, J from [email protected] has sent two MTCN numbers along with the names of the persons regarding transfer of 590 GBP In each account. (viii) At page no. 138 137, there is an e-mail sent by Shri Sanjaybhai on 06.01.09 from his e-mail id [email protected] to one ksscience@ hushmail.com wherein he had written to send 250GBP and he would send them 100 grams. He had also asked to send the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the transfer details from [email protected] side. It was further intimated that everything is ready on their end and the container with 575 gms of material i.e. Ketamine is ready to be shipped. (iv) In the e-mail correspondence available at page no. 113, Raghunaath Agencies wrote to bob_coalition@ hushmail. com, on Monday, February 23, 2009 6:58 AM as under: As soon as we have the transfer details from your side we have the goods ready for dispatched for you. The headache and the system involved for shipping is the same even if v ship 50 grams or 500grams or 5kgs. We can ship you upto 5kgs of material every time as and when u want it in future. With best regards, (v) In the e-maill correspondence available at page no. 114, Raghunaath Agencies wrote to [email protected], on Monday, February 24, 2009 as under: Friends, Its almost a week we have handed over 1000 pills of Diaz to my connecting person, but at the moment things arę strict in India at all the ports and there are lot of seizures and thus one has to be very aware and cautious about the moving of the stuffs. U can read yesterday's news and u will feel that we all are safe just bcos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left the factory on his (Kishanbhai's) bike; the bike was driven by Shri Kishanbhai and he took hold of the cartons; he did not remember the motor bike number; he was taken to a road leading to Palsana where he threw one carton as directed by Kishanbhai around 8 0'clock at night; they proceeded on the road towards Palsana and threw away the second carton; the third carton was thrown away as told by Shri Kishanbhai somewhere in a Nala where there was water and it was a place near Hojiwala Estate; he did not know what kind the said medicines were and he was not at all told anything about the same by both Shri Sanjay and Shri Kishanbhai; they came back to the factory after throwing all the three cartons; the cartons were grey in colour but were not big in size; Shri Sanjay and Shri Kishanbhai had kept some documents which were burnt in an open place in front of the factory as per their direction; he came back to the factory within 5-10 minutes after burning the documents; Shri Sanjaybhai and Shri Kishanbhai then both left on their two-wheelers, but before leaving, he was told to flush the toilet which was near their office on second floor with 2-3 buckets of water; when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Prem Singh were delivered by them to M/s Pacific Express Corporation, Mumbai and Shri Harshad of M/s Swiss International Cargo Inc., Mumbai; They were informed that the parcels contained Medicines and were to be delivered carefully; as soon as the said parcels arrived in their Mumbai office, they used to receive the phone call either from M/s Pacific Express Corporation, Mumbai or Shri Harshad of M/s Swiss International Cargo Inc., Mumbai and accordingly the delivery was made by them; the parcels weighed about 5-6 kgs and the names of the recipient M/s Pacific Express Corporation, Mumbai or Shri Harshad of M/s Swiss International Cargo Inc., Mumbai were written on the said parcels and as soon as they received the phone call they used to deliver the said parcels; that they did not obtain any receipts in token of having delivered the said parcels from the above said courier companies; On being asked about M/s Pacific Express Corporation, Mumbai and M/S Swiss International Cargo Inc., Mumbai, he stated that both are courier companies engaged in delivery of parcels to foreign countries and their office is situated near their (Purohit Courier) office; - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 7.5.2008 and he put his dated signature on the same in token of having furnished the same; that the address of M/s. Continental India Courier Service as appearing on the AWB is 4, Bismillah Building, Ranade Road, Dadar West, Mumbai 400028; that he had handled about 10 consignments of Sanjay M. Gadhesariya in the past. 93. The statement of the proprietor of M/s. Pacific Express Corporation was recorded on 20.08.2009 wherein he has stated as under: on being asked regarding the parcels (1) weighing 6 kgs. Received from M/s. Purohit Courier Cargo Service, Navsari on 19.2.2009 (1)weighing 5 kgs. received from M/s. Purohit Courier Cargo Service, Navsari on 8.2.09 and (III) one parcel received from M/s. Purohit Courier Cargo Service, Navsari on 15.7.2008, all the three of Shri Sanjay M. Gadhesariya, he stated that he had received the said consignments from Shri Sanjay M. Gadhesariya who was known to them as Shri Sanjay Patel ; he knew Sanjay Patel for the last 5 years and he was earlier exporting dyes, dyestuff; that since the consignments referred above were more than 5-6 months old, they did not have any records such as Invoice copy, Packing List, AWB; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were made, the goods were in fact transported from Aurangabad albeit as the Benzahydrol Powder for onward exports via Vapi, when the same were intercepted and seized pursuant to the intelligence inputs. Pertinently, Jayesh was already authorized vide the letters dated 05.03.2009 and 06.03.2009 respectively by Sanjay to take delivery of the consignment and for rebooking the parcel for onward transit towards the intended export, had the substance not been seized at Vapi. The overt act of physical movement of the prohibited substance was proximate to the intention of respondents to take them out of India which thus constitutes an attempt to export as per Section 113(d) of the Customs Act, 1962. 97. The intention of the statute is to proceed against the offender attempting to export goods contrary to the provisions of the Act. Similarly, a personal penalty is on a person who, in relation to the goods, does or omits to do any act, which act or omission of such an act, shall render the goods liable for confiscation under Section 113 or abets the doing or omission of such an act has been provided in Section 114 of the Customs Act. SECTION 138C OF THE ACT 1962 : 98. Mr.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not then any respect in which it was not operating properly or was out of operation during (that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be a reference to its being derived therefrom by calculation, comparison or any other process. 99. We do not find any merit in the above submission of Mr.Trivedi. The truth or the relevance of the documents has been admitted in no uncertain terms by the respondents in their statements recorded under Section 108 of the Act 1962. In such circumstances, it is too much for the respondents to say that the electronic evidence could not have been taken into consideration. In fact, the electronic evidence on record fortifies what has been stated by the respondents in their statements recorded under Section 108 of the Act. 100. In the aforesaid context, we may refer to one order passed by the CESTAT Principal Bench, New Delhi, in the case of Laxmi Enterprises vs. Commissioner of Customs (Prev.), New Delhi, reported in 2018 (361) E.L.T. 1054 (Tri. - Del.). We quote the relevant observations made by the Principal Bench of the Tribunal as under : 11. The appellant has raised objections to the admissibility of the documents recovered from the laptop. They have cited the provisions of Section 138C of the Customs Act. We find such objections without basis in as much as the truth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigations. Accordingly, the Adjudicating Authority rightly rejected the transaction value of the goods in terms of rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. OUR FINAL CONCLUSIONS MAY BE SUMMARISED AS UNDER : 103. The statement made before the customs officials is not a statement recorded under Section 161 of the Code of Criminal Procedure, 1973 and, therefore, it can be said to be a material piece of evidence collected by the customs officials under Section 108 of the Customs Act. 104. If a statement recorded under Section 108 of the Customs Act incriminates the accused, inculpating him in the contravention of the provisions of the Customs Act, it can be considered as a substantive evidence to connect the accused/individual with the contravention of the provisions of the Customs Act. In the case on hand, the statements recorded of various individuals including the respondents under Section 108 of the Customs Act were rightly relied upon by the Commissioner (Customs) as substantive evidence connecting the respondents herein with the contravention of the provisions of Section 113(d) of the Act. 105. The Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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