1989 (5) TMI 234

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.... in the godown of M/s. T.C.I., Raxaul and found 169 bags of Corpra weighing 7320 Kgs. stored in the godown. It was revealed that the said consignment were booked from Tiptur (Karnataka) and were meant for export which was searched by the Department on 16-2-1985 when the Preventive Escort went on checking on Motihari, at Raxaul. On interception of the Truck No. BRF-3454 loaded with Copra, they have found 196 bags of Copra out of which 165 bags were belonging to the appellants. They were all seized by the Customs Officers. A show cause notice was issued to the appellant dated 12-8-1985 stating that Copra was a banned item and they could not be exportable and since the items in question were attempted to be consigned to Nepal why the goods sho....

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..... In the decision reported in 1985-S.C.R-1618 (Mad.) it is held at para-24 which reads as follows: "In the language of the Supreme Court, attempt defies a precise and exact definition. Section 511 of the Indian Penal Code punishes "attempt", but it does not define "attempt". All said, the question is really one of fact depending upon the peculiar features and circumstances of each case and the provisions of law, the attempted breach of which is complained of. 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 th....

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.... If there is no taking of the goods out of India, there is no exportation." In this decision their Lordships of Madras High Court made a reference to a decision of the Supreme Court reported in 1969-2 ECR-663 in the Malkiat Singh v. State of Punjab case, wherein their lordships held as follows :- "The test for determining whether the act of the appellants 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. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at an....

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....nts relied on a decision reported in 1986(25)-E.L.T.-338 wherein the Special Bench of C.E.G.A.T. in para-24 held as follows: "The last point remaining to be considered is Shri Narasimhan's contention that in terms of the B-11 bond executed by the appellants in order to get the goods provisionally released, they should have been asked to produce the goods before the adjudicating authority. This was, however, not done. The bond amount was ordered by the Gujarat High Court to be returned to the appellants. The goods had already been released provisionally. Nothing was, therefore, available to be confiscated by the Collector. Shri Narasimhan, therefore, submitted that there could be no fine in lieu of confiscation. The only way the Collector c....