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TMI Blog2008 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... ks and tempo belong to M/s. Care Wing Cargo and Shri Sanjay Sharma of M/s. Care Wing Cargo on being asked to produce the documents for transportation to Calcutta expressed his inability to give the documents. The persons available on the spot Shri Pushpendra Kumar of M/s. Mamta Fashions and Shri Vikram Singh, godown keeper also could not produce any documents for transportation of goods to Calcutta. However, Shri Vikram Singh produced three invoices issued by M/s. Prashant International, Tirupur, which were received by them along with the said consignment of 750 cartons. Statements of Shri Pushpendra Kumar were recorded on 9-10-2000 i.e. the date of search wherein he stated that since July, 2000 he was working with M/s. Mamta Fashions, who had earlier exported two consignments of readymade garments to Moscow valued at Rs. 1.10 crore and Rs. 30 lakhs from Nhava Sheva and that he was sent to Mumbai by Shri Ram Niwas with instructions to load the consignments for transportation to Calcutta and that on 9-10-2000, he accompanied Shri Mishra of M/s. AST Logistic Services (I) Pvt. Ltd. to Shriram Warehousing Corporation godown at Bhiwandi and gave pay order to Shri Vikram Singh, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the two trucks and one tempo for transporting the same to Calcutta and that he wanted the documents to be given to him for transporting the goods, when at that time Customs officers arrived and asked for the documents which he could not produce as the same were not made available to him. Subsequent investigations revealed that M/s. Mamta Fashions on receiving the order, for export of garments, from Moscow signed a contract on 7-8-2000 with Russian party for supply of 90,000 pieces of cotton hosiery knitted T-shirts at the rate of Rs. 177.77 totalling to Rs. 1,59,99,833.31. Letter, of credit bearing No. 0251 dated 16-8-2000 was by the Russian party for an amount of Rs. 1.60 crores. M/s. Mamta Fashions signed a contract with M/s. K.C. Knitwear, Tirupur on 2-7-2000 for supply of 90,000 pieces of cotton knitted hosiery T-shirts @ Rs. 95/- per piece whereas earlier the rate of Rs. 55/- per piece was fixed with M/s. K.C. Knitwear for supply of 90,000 pieces of T-shirts. These facts were confirmed by Shri Ram Niwas Singh and Shri Ishwar Singh, authorized Signatories of M/s. Mamta Fashions in their statements. 4. As per instructions of M/s. Mamta Fashions, M/s. K.C. Knitwear prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellants submitted that, without admitting that there was a over valuation of goods, they are contending that there has been no attempt to export by them so as to render the goods liable to confiscation and all the acts done by them, can at best be considered as preparation for export but not an attempt to export in as much as the goods were merely loaded on the trucks at Bhiwandi for onward transportation to Calcutta and there is no evidence to show that they have taken any steps beyond loading the goods for export to Calcutta by over invoicing the goods. All the facts narrated in the Commissioner's order relate to their attempt to export through Nhava Sheva Customs House, which export has been given up on account of some problem with the letter of credit which also expired on 26-9-2000, whereas the goods have been detained on 9-10-2000. Goods were lying loaded in the trucks at the godown when the Customs officers visited and on enquiries the persons available on the spot i.e. Shri Vikram Singh, Godown Keeper and Shri Pushpendra Kumar, representative of M/s. Mamta Fashions clearly stated that the goods were loaded for being transported to Calcutta. The representative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppa Reddy, while explaining the difference between an attempt and preparation observes as under : "31.....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 the offence, and, third, such act must be proximate, to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stepped and searched at the very commencement of the journey or even at Shirsat Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared, or were preparing for the commission of the offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also invited to the Tribunal's decision in the case of Kashmiri v. Collector of Customs, 1992 (57) E.L.T. 284 (Tribunal) where also the aspect of preparation and attempt was discussed. The relevant para 4.3 to 4.5 are reproduced as under : "4.3 It is apparent from the facts of this case that heroin has been seized from a house in Saket at Delhi. This has not been seized either within or near the customs area or in the course of its transmission towards Airport or Customs area so that the charge of attempt of export could be sustained in the instant case. 'Attempt' has not been defined in the Customs Act. However, attempt at export came to be examined before the Supreme Court in the case of State of Maharashtra v. Yakub & Others [1983 (13) E.L.T. 1637 (S.C.) = AIR 1980 SC 1111]. Two separate judgments have been delivered by the two learned Judges of the Supreme Court comprising the Division Bench of the Supreme Court which heard and decided that matter. After examining the case law and several authorities on the subject one of the Judges (Sarkaria J) observed, as follows:- "What constitutes an 'attempt' is a mixed question of law and fact, depending largely on the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result. The measure of proximity is not in relating to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsat Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver. The fact that the truck was driven up to a lonely creek from where the silver could be transferred into a seafaring vessel was suggestive or indicative though not conclusive, that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not agree with such a finding of the Commissioner. When the statements were recorded on the spot and documents were made available at the spot, the question of there being after thought or doctored does not arise. All the evidences brought forth by the department is towards the export from Nhava Sheva. When the letter of credit has expired on 26-9-2000 and the visit of the Customs officers was made on 9-10-2000, it is not clear as to why the goods will be again sent to Nhava Sheva when no attempts were made to extend the letter of credit. The revenue has not brought out any correspondence with the foreign buyer to show that negotiation was going on for extending the letter of credit. The shipping bills were also filed only for the part of the cargo i.e. five only and not for the entire cargo. From all the circumstances it is apparently clear that attempt to export from Nhava Sheva was totally given up. The goods therefore have to be treated as being loaded on the truck for their onward journey to Calcutta whether for export or otherwise. Since Calcutta port is several hundred kilometres away from Bhiwandi, it cannot be said that the exporter M/s. Mamta Fashions would have carried o ..... 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