TaxTMI 
TaxTMI 
2016 (5) TMI 601
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....t Sh. Sanjay Kumar Patel for temporary storage of Rice/Paddy. That some bill books sale Registers, Road permits (Form D-VIII) etc were also recovered, alongwith certain documents, showing transportation of similar good in the past from India to Nepal on tractors bearing Nepal Registrations and also showing names of Rice Mills situated in Nepal. That in his statement Sh. Vijay Kumar Bajaj stated that these goods stored in the godown were meant to be taken to Nepal as was being done in the past. That Sh. Vijay Kumar Bajaj in his subsequent statement made it clear that his first statement was made on the basis of hearsay. 2.1 That on 7/9/08 another godown, 100 meters away from the above godown, was found from the scrutiny of documents & DRI officers on 21/9/2008 seized 2510 bags from this second godown belonging to Sh. Krishna Prasad Sarraf given to Sh. Umeshwar Prasad Jaiswal. That the keys of the godown were provided by Smt Soni Jaiswal wife of Sh. Umeshwar Prasad Jaiswal. That Sh. Krishna Prasad Sarraf also stated that Sh. Umeshwar Prasad was selling the paddy of India origin to Nepal. The Sh. Sanjay Kumar Patel authorized the other appellant Sh. Manish Kumar for claiming the ow....
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....Jaiswal, who provided the keys of the godown during investigations, also stated that the seized goods were meant to be exported to Nepal. That the words dutiable or prohibited existing in Sec 113 (c) of the Customs Act 1962 have been deleted w.e.f-14.05.2003,..therefore, any goods brought near the land frontier with intent to export will be liable to confiscation as per law laid down by Gujarat High Court in the case of Manilal B. Patel Vs UOI (Supra). 4. Heard both sides & perused the case records. The issue involved in these appeals is whether Paddy/Rice stored by the appellants in two godowns situated close to the Indo-Nepal border are liable to confiscation under Sec 113 (c) and whether penalty can be imposed upon the appellants under Sec 114 of the Customs Act 1962. Sec 113 (c) of the Customs Act 1962 is thus very relevant and is reproduced below:- "SECTION 113. Confiscation of goods attempted to be improperly exported, etc.- The following export goods shall be liable to confiscation :- (a).... (b).... (c). any goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being e....
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.... Bhanabhai Patel v. Union of India reported in 1992 (60) E.L.T. 99, it was held that "...............near the land frontier means that if it is brought at some short distance place from the coastal area of the land frontier, say 5-6 kms. from the coast or nearby than it would be near the coastal area or land frontier..........". Inasmuch as the goods have been brought to Agartala which is only within 5-6 kms. to Bangladesh and read with the evidences on record, I uphold the views of the adjudicating authority that the goods were meant for illegal export to Bangladesh, the same have been rightly confiscated by the adjudicating authority." 4.3 In view of the above judicial pronouncements each and every case has to be seen separately in the light of the evidences available on record whether the act of the appellants can be categorized as a "preparation" or the same can be attributed to be an attempt and it can not be said that the same authority adjudicated seizure from a godown differently in another adjudication proceedings. 4.4 First appellate authority while deciding this issue has made following observations:- "The impugned goods were seized from the godown which....
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....atel Vs Union of India (Supra) on the issue of "attempt" to export under Sec 113 (c) of the Customs Act 1962 held as follows in Paras 15,16, & 18 to 20:- "15. In our view this submission has no force. As per Section 113(c) it is not for the authority to establish that petitioner attempted to export the prohibited goods. The authority is required to establish that petitioner brought the goods near coastal area for the purpose of being exported. Therefore, the conditions existing at the time when the goods were brought near coastal area is to be ascertained for arriving at a conclusion whether they were brought near the coastal area for being exported. 16. To overcome the difficulty of establishing the ingredient of attempts to export Section 113(c) is added with a specific object that if the goods were brought near the land frontier or the coast of India for the purpose of being exported from a place other than a customs station the goods shall be liable to confiscation. This provision was added to overcome the difficulty that even if the large quantity of prohibited goods were brought to a small village near the border for the purpose of export, yet it was not pos....
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.... A.I.R. 1974 SC 859 = 1983 (13) E.L.T. 1546. In that case while discussing the provisions of Section 167 of the Sea Customs Act, the court also discussed the contention that burden of proof is always on the department and also the jurisdiction of the court under Article 226 of the Constitution of India. The court held that the burden of proving that the goods are smuggled goods, is on the Department. As it is a fundamental rule relating to proof in all criminal proceedings, where there is no statutory provision to the contrary. The court further held that one of the kindred principles is that the prosecution or department is not required to prove its case with mathematical precision to a demonstrable degree, for in all human affairs absolute certainty is a myth. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. With regard to smuggling the Supreme Court held that smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive....
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....ntive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed out by Best in "Law of Evidence" (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt presumption juris: but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property," though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded again....