2015 (10) TMI 2333 - AT - Customs

Tribunal overturns Agarwood confiscation & penalty under Customs Act due to lack of export attempt proof

The Tribunal set aside the confiscation of Agarwood and penalty imposed under Sections 113 and 114 of the Customs Act, 1962, as the investigation failed ... Export of prohibited goods - Agarwood of a plant Acquilaria malaccensis - Whether Agarwood seized from the appellant can be confiscated under Section 113 and whether penalty can be imposed upon the appellant under Section 114 of the Customs Act, 1962? - Appellant explained the licit acquisition of agarwood and stated that he was carrying it to Mumbai for local sales and not for taking to Bangkok - No valid visa with appellant at the time of seizure - Revenue contended that appellant has taken Agarwood earlier as well to Bangkok and could not produce any evidence for legal acquisition of seized goods - Notification No.3(RE-2003)/2002-2007 read with Schedule 2 (Chapter-12) of Export Policy 2002-07 prohibits export of Agarwood. Held That:- There is no evidence on record that appellant during earlier two visits to Bangkok carried Agarwood - No valid visa found in passport of appellant for going to Bangkok - Seized goods are also neither notified goods nor specified goods under Customs Act, 1962 and prohibitions under Export Policy will come into operation if goods are brought into Customs area - Order of confiscation and penalty liable to be set aside - Decided in favour of Appellant. Issues Involved:1. Confiscation of Agarwood under Section 113 of the Customs Act, 1962.2. Imposition of penalty under Section 114 of the Customs Act, 1962.3. Legality of the acquisition and intended export of Agarwood.Issue-wise Detailed Analysis:1. Confiscation of Agarwood under Section 113 of the Customs Act, 1962:The core issue was whether the Agarwood seized from the appellant could be confiscated under Section 113 of the Customs Act, 1962. The relevant section states that 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, can be confiscated.The Tribunal observed that the first appellate authority upheld the confiscation based on the illegal acquisition of the seized goods but did not provide findings on how the seized goods were meant for export. The Tribunal emphasized that there was no evidence that the appellant, during his previous visits to Bangkok, carried Agarwood, nor was there a valid visa in his passport for going to Bangkok at the time of the seizure. The Tribunal cited the case of Md. Liakat Ali v. CC (Prev.), Kol, W.B. [2008 (222) ELT 295 (Tri.-Kolkata)], where it was held that mere preparation does not amount to an attempt to export, and the goods were not seized in a customs area. The Tribunal concluded that the investigation could not prove that the Agarwood was attempted to be exported out of India.2. Imposition of Penalty under Section 114 of the Customs Act, 1962:The Tribunal also addressed whether a penalty could be imposed under Section 114 of the Customs Act, 1962. This section deals with penalties for attempting to export goods contrary to the provisions of the Act. The Tribunal reiterated that there was no evidence of an attempt to export the Agarwood, as the goods were not seized in a customs area, and there was no valid visa or ticket for Bangkok. The Tribunal referred to the legal principle that preparation alone does not constitute an attempt, as established in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663], where the Supreme Court held that an attempt must be a direct movement towards the commission of the offense after preparations are made. Consequently, the Tribunal found that the penalty imposed under Section 114 was not justified.3. Legality of the Acquisition and Intended Export of Agarwood:The Tribunal examined the legality of the acquisition and the intended export of the Agarwood. The appellant argued that he had acquired the Agarwood legally and was carrying it to Mumbai for local sales, not for export to Bangkok. The appellant provided various documents to support his claim, but the Revenue contended that the documents were forged or did not cover the seized Agarwood. The Tribunal noted that the first appellate authority did not provide sufficient evidence to prove the illegal export intention. The Tribunal held that the circumstantial presumptions based on intelligence and previous travels to Bangkok could not replace concrete evidence of an attempt to export.Conclusion:The Tribunal concluded that the investigation failed to prove that the Agarwood was attempted to be exported. The confiscation of the seized goods and the penalty imposed under Sections 113 and 114 of the Customs Act, 1962, were set aside. However, the Tribunal acknowledged the restrictions from the Forest Department on the movement of Agarwood and the questionable authenticity of the documents produced by the appellant. Therefore, the Tribunal ordered the release of the impugned goods to the appellant in the presence of jurisdictional Forest officers for any suitable action as per their laws and procedures.Final Order:The appeal filed by the appellant was allowed on the terms mentioned above.