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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 ..... hew and N.D. George, Advocates, for the Appellant. Shri T. Tiju, JDR, for the Respondent. [Order per : K.K. Agarwal, Member (T)]. - The brief facts of the case are that, on the basis of some information, officers of Marine and Preventive Wing, Mumbai visited the warehouse of Shriram Warehousing Corporation at Bhiwandi, on 9-10-2000, where, as per intelligence, 750 cartons of readymade garments of M/s. Mamta Fashions for export were stored. From the records available in the warehouse, it was ascertained that the goods were received there on 21-8-2000 in the name of M/s. AST Logistic Services (I) Pvt. Ltd., who were freight forwarders of M/s. Mamta Fashions. On enquiry with the godown keeper about the goods, he informed that the said goods were loaded in two trucks and one tempo for onward transportation to Calcutta. These trucks 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents along with Shri Pushpendra Kumar of M/s. Mamta Fashions and Shri Sanjay Sharma of M/s. Care Wing Cargo, where 750 packages of garments were loaded in two trucks and one tempo brought by M/s. Care Wing Cargo for forwarding the goods to Calcutta as per the instructions of M/s. Mamta Fashions. He stated that he came to know of the invoice of M/s. Prashant International wherein the value of T-shirts was shown as Rs. 18.75 per piece and the FOB value declared in the shipping bills filed with the Customs was Rs. 177/-. 3. Statement of Shri Sanjay Sharma of M/s. Care Wing Cargo was recorded on 9-10-2000, wherein he inter alia stated that he reached Shrirarn Warehousing Corporation godown at Bhiwandi along with two trucks and one tempo and met Shri Pushpendra Kumar of M/s. Mamta Fashions and that 750 packages lying in the godown were loaded 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 Fashi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers was with a view to avail illegal draw back by over valuing the goods and therefore the goods were liable to confiscation and penalties were liable to be imposed on M/s. Mamta Fashions and its proprietor Ms. Mamta Choudhary, Shri Ram Niwas, Shri Ishwar Singh authorized signatories, M/s. K.C. Knitwear and its proprietor Shri Ved Prakash as well as Shri Pramod Potale, Branch Manager, M/s. AST Logistic Services (I) Pvt. Ltd. Show cause notice was accordingly issued wherein goods were confiscated with an option to redeem the same on payment of redemption fine of Rs. 15 lakhs and penalties amounting to Rs. 5 lakhs was imposed on M/s. Mamta Fashions and Rs. 2 lakhs each on Ms. Mamta Choudhary, Shri Ram Niwas and Shri Ishwar Singh and penalty of Rs. 1 lakh each on M/s. K.C. Knitwear, Shri Ved Prakash and Shri Pramod Potale. 6. Ld. Advocate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it." (Para 4). "'The test for determining whether the get of the accused person constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless." (Para 4). It was submitted that in the present case merely loading of the goods in the trucks do not amount to any attempt as it was completely harmless. It does not mean that the appellant was going to export goods through Calcutta by highly over invoicing and the question of export through Nhava Sheva does not arise as no one available on the spot has stated so. Attention was also invited to the Supreme Court decision in the case of State of Maharashtra v. Yakub Others, 1983 (13) E.L.T. 1637 (S.C.) = AIR 1980 SC 1111 where Justice Chinnappa 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a distinction between the preparation and attempt under the provisions of Customs Act, 1962 and the distinction, though fine, is indeed appreciable. In the instant case the seizure was effected in a place near Cochin more than 100 miles from Trivandrum. Even if the appellants were actuated by an intention to transport silver out of India and were taking the same towards that objective to Trivandrum, it is not unlikely or improbable that they could change their mind and revert back. Therefore, the act of the appellants would merely be at the stage of preparation falling short of attempt to export silver and since preparation to commit the offence of exporting silver is not punishable under the Customs Act, it has to be held that the charges under Sections 113 and 114 of the Act have not been brought home against the appellants. Attention was 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fold any one or series of acts committed beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation. Such act or acts being reasonably proximate to the completion of the unlawful export. 4.5 Similarly, the other learned Judge (Chinnappa Reddy J.) explained the meaning of expression 'attempt' as follows and held that in the facts and circumstances of that case it was clearly attempt at unlawful export of the silver. In para 31 of his judgment he has observed as follows :- "31. 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 the offence, and, third, such act must be proximate' to the intended 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 offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls filed at Nhava Sheva, contract entered with the Russian party and similar exports in the past. However, we notice that on the date when the Customs officers visited the godown at Bhiwandi, all these who were present i.e. godown keeper Shri Vikram Singh; representative of M/s. Mamta Fashions Shri Pushpendra Kumar; Shri Sanjay Sharma, representative of M/s. Care Wing Cargo; Shri Mishra General Manager of M/s. AST Logistic Services (I) Pvt. Ltd. who arranged for documentation have stated that the goods were loaded on the truck for onward transportation to Calcutta as per directions of M/s. Mamta Fashions. Page 91 of Commissioner's order also records that certain documents were submitted which states that the goods were to be transported to Calcutta. All these statements and documents have been rejected by the Commissioner as being after thought. We cannot 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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