Attempt to export under customs law requires direct movement; suspicious conduct alone cannot sustain confiscation or penalty.
An alleged attempt to export silver was not proved because "attempt" under customs law requires more than preparation and needs direct movement towards the prohibited export; suspicious conduct, unexplained records, and storage in a transport godown were insufficient without evidence of a destination or export step. The confiscation and personal penalty were therefore liable to be quashed. The court also held that the writ petition could not be refused for non-exhaustion of alternative remedies because the appeal was time-barred and required deposit of penalty, while revision was discretionary and not equally efficacious. Relief was thus maintainable.
Issues: (i) Whether the material on record disclosed an attempt to export silver so as to attract confiscation and personal penalty under the Customs law. (ii) Whether the writ petition should be refused on the ground that the petitioner had not exhausted the statutory remedies of appeal and revision.
Issue (i): Whether the material on record disclosed an attempt to export silver so as to attract confiscation and personal penalty under the Customs law.
Analysis: The expression "attempt" was held to require more than preparation. An attempt exists only where, with the intention to commit the offence, there is a direct movement towards its commission and the act is sufficiently proximate to the prohibited export. On the admitted and proved facts, the petitioner had purchased silver, shifted it to a transport godown, and had failed to maintain records or explain the transaction satisfactorily, but those facts were equally consistent with intended disposal within India. There was no evidence of any act amounting to a direct movement towards export, nor any proved destination, instruction, or other circumstance showing that export had actually been set in motion. The confiscatory and penal consequences under the Customs law could not be sustained on suspicion or conjecture, and the burden of proving the alleged attempt remained on the authorities.
Conclusion: No attempt to export the silver was proved. The confiscation and personal penalty were liable to be quashed.
Issue (ii): Whether the writ petition should be refused on the ground that the petitioner had not exhausted the statutory remedies of appeal and revision.
Analysis: The existence of an alternative remedy does not oust the writ jurisdiction, but is a factor in judicial discretion. The appellate remedy required deposit of the penalty and was already barred by time, while revision was discretionary and not a remedy available as of right. Those remedies were therefore not equally efficacious, and the Court declined to withhold relief on that ground.
Conclusion: The petition was maintainable and relief was not barred by non-exhaustion of alternative remedies.
Final Conclusion: The impugned order could not stand and the petitioner was entitled to writ relief, including return of the seized silver and protection against enforcement of the confiscation and penalty order.
Ratio Decidendi: In confiscatory proceedings for alleged export offences, an "attempt" requires proof of a direct movement towards export and cannot be inferred merely from suspicious conduct or incomplete preparations; the writ court may grant relief despite unexhausted remedies where the statutory alternatives are not equally efficacious.
TaxTMI 
AI Drafter ✕
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