TaxTMI 
TaxTMI 
2019 (4) TMI 1190
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.... the Directorate of Revenue Intelligence (DRI) from the possession of a courier company, M/s.DHL Express (India) Pvt. Ltd (hereinafter referred to as "the courier company") on 25.8.2010. Prior to that, a packet containing the diamonds concealed in a sports jacket had been brought to the courier by one Perez Hender Valmore for export to Italy. He had also furnished a declaration to the courier company to the effect that the packet contained garments and other personal goods only. The courier company prepared an Airway Bill with the above person as the consignor and one Giorgio Borrelli (Italy) as the consignee. Shortly after preparation of the Airway Bill, DRI officers, having received intelligence to the effect that diamonds were likely to ....
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....t of the diamonds imported by the Appellants for the purpose of exhibition. After inquiry, a show-cause notice was issued by the DRI alleging that the diamonds had been attempted to be exported illegally and hence liable for confiscation under Section 113(d), (e) & (i) of the Customs Act read with relevant provisions of the Foreign Trade (Development and Regulation) Act/Rules and that the noticees were liable to be penalized under Section 114 of the Act. The said Perez Hender Valmore did not respond to the show-cause notice. The Appellants, in their reply to the show-cause notice, claimed ownership of the diamonds and prayed for permission to redeem the same. 3. The Commissioner of Customs, CSI Airport, Mumbai, vide earlier adjudicating o....
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....or reexport of the goods in terms of the relevant Notification is also liable to be considered by the learned Commissioner. We are of the view that, in the facts and circumstances of this case, the delay of re-export is liable to be condoned." 4. The learned Commissioner vide impugned Adjudicating Order dated 16.12.2011 ordered for confiscation of the diamonds in issue, i.e. 1641 pieces of cut and polished diamonds, u/s. 113(d) ibid and granted option to the Appellants, being owner of the diamonds, to pay a fine of Rs. 20 lakhs in lieu of confiscation u/s.125 ibid. 5. We have heard learned counsel for the Appellants and learned Authorised Representative for the Revenue and perused the records. Learned counsel for the appellant submitted....
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.... whether the diamonds in question are liable to be confiscated under Section 113(d) ibid the said section is extracted as under:- "113. Confiscation of goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation:- xxx xxx (d) 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." Section 113(d) specifically provides that the export goods are liable for confiscation, if they are exported or attempted to be exported contrary to any prohibition imposed by or under Customs Act or any other law for the time being in fo....
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....ia and if the act or acts could be fitted in the course of such movement of the goods, or, in other words, the act could fall in the course of progress towards the actual physical taking of the goods out of India, the mischief of section 113(d) would be attracted. Admittedly the goods were booked for export by Perez Hender Valmore. It is not the case of DRI that the said Perez Hender Valmore has any link or relation or concern with the Appellant. There must be an act or acts, by the Appellant, done towards the actual physical movement of the goods with intention to take them out of India. That alone, in our view, would constitute an attempt to export the goods. 'Attempt' must also have relevance to the taking of the goods out of India. We a....