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2022 (4) TMI 316
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.... 2011 passed by the Commissioner of Customs, Ahmedabad. 4. This Appeal came to be admitted on the following substantial question of law : "Whether the CESTAT erred in interpreting and applying the provision of Section 108 as well as Section 114(i) of the Customs Act, 1962 to the case of the respondent ?" 5. The facts giving rise to this Appeal may be summarised as under: (1) An intelligence was received by the Directorate of Revenue Intelligence (DRI), Regional Unit, Surat, that M/s. Perfect Chemicals, Aurangabad, a bogus and fictitious firm, had consigned a parcel containing a psychotropic substance which was most likely 'Alprazolam' and that the said parcel was consigned to M/s. Bhatia Chemicals, Vapi, under the Lorry Receipt No.22987 dated 03.03.2009 and was to be unloaded at M/s. Choudhary Roadways, Parcel Office, Vapi, on 05.03.2009. (2) In view of the above intelligence, a surveillance was kept on 05.03.2009 at the given address of M/s. Choudhary Roadways at Vapi. The DRI noticed that the goods transported from Aurangabad were received and stored in the godown of M/s. Choudhary Roadways, at Vapi, in the early morning of 05.03.2009. Several discreet inquiries confirme....
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....ishanbhai Manjibhai Gadhesariya who is his relative; that he was getting a salary of Rs. 8000/- per month. On being asked further, he stated that on 6.3.2009, he received a phone call from Shri Sanjaybhai, a younger brother of Shri Kishanbhai, at around 10 a.m. and he was told to go to Vapi to take delivery of the goods; that the full name of Sanjaybhai is Shri Sanjaybhai Manjibhai Gadhesariya and he stays at Bhojalram Society, behind Kranti Maidan, Ashwani Kumar Road, Varachha, Surat; As per the telephonic talk with Shri Sanjaybhai, he, along with one employee, Shri Shivabhai, reached Palsana Chokdi at around 12.30 p.m. where he met one person of Shri Sanjaybhai whose name he did not know; that as per the telephonic discussions, he had with Shri Sanjaybhai, he handed over to him one Bilty No.22987, dated 3.3.2009 of M/s.Choudhary Roadways, one Invoice No. JBE/BC001 dtd. 6.3.2009 of M/s. J.B. Enterprise, A-212, Simit Shopping Centre, GIDC Char Rasta, Vapi and one letter dated 5.3.2009 issued by M/s. Bhatia Chemicals, Plot No. 2219, GIDC Estate, Ankleshwar, addressed to the Manager, Choudhary Roadways, Vapi; that in this letter, the authority is given to one Shri Anuj Shah for....
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....ty as Jayeshbhai and also put his real signature. He was further shown one Bilty No. 22715, dated 19.1.2009 of M/s. Choudhary Roadways; that after seeing the same, he stated that the delivery of the goods of the said L/R was also taken by him from the said Choudhary Roadways, Vapi at the directions of Shri Sanjaybhai and the goods were re-booked again in Surat-Ahmedabad Transport; that he did not know who had taken delivery of the goods at Surat; that he had not taken delivery of the goods at Surat; that he was not told about the quantity and the type of goods contained in the parcel; that he did Sanjaybhai's work only because of relationship; that he did not know whether the goods were prohibited in nature or otherwise. He was further shown the Panchnama dtd. 06.03.09 under which the parcel received from Aurangabad under L/R No. 22987, dated 3.3.2009 had been detained under the provisions of the Customs Act; that the Panchnama was written in English, but he had been explained the contents in Gujarati; that he had put his dated signature on the last page of the Panchnama. On being asked further, he stated that Shri Sanjaybhai was a Chemical Engineer and he had an office at....
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.... the case of the Revenue that the consignment seized by the DRI was sent by one M/s. Perfect Chemicals, Aurangabad, and was consigned to M/s. Bhatia Chemicals, Vapi. The inquiry further revealed that M/s. Bhatia Chemicals and M/s. J.B.Enterprises were fictitious and non-existing companies. The inquiry further revealed that even M/s. Bhatia Chemicals stationed at Aurangabad was a fictitious company. 7. Nandkishore Rupchand Choudhary of M/s. Choudhary Roadways in his statement dated 19.03.2009 informed the DRI officers that on the earlier occasions, during the period between May 2008 and January 2009, they had transported six consignments of M/s. Perfect Chemicals to Vapi; the consignees in all these consignments were shown as M/s. Bhatia Chemicals. He furnished the details of the Lorry Receipt number etc. He also informed that Jayeshbhai Chunibhai Vadaliya had collected the earlier consignments also and produced the acknowledgment copy with reference to three of the Lorry Receipts, i.e. 22040 dated 23.9.2008, 22489 dated 8.12.2008 and 22715 dated 19.1.2009 respectively. The acknowledgment receipt was signed by Vadaliya with the Mobile No.9979942428. 8. Thus, it is the case of the ....
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....or injection when dissolved. In certain cases, it is being injected intramuscular. Ketamine, along with the other 'club drugs', has become popular among teens and young adults at dance clubs and 'raves'. The use of the drug can cause delirium, amnesia, depression and long term memory and cognitive difficulties. The export of Ketamine is governed by the Notification No.67 (RE- 2007)/2004-2009 dated 27.12.2007 issued by the DGFT, wherein, the export of the drug is subject to the NOC from the Narcotics Commissioner. 11. Ketamine Hydrochloride is a psychotropic substance presently included with the name of Ketamine at serial number 110A of the Schedule of the NDPS Act, Ephedrine Hydrochloride and Pseudoephedrine Hydrochloride are both declared to be 'controlled substances' in terms of Section 9A of the NDPS Act, the possession or dealings etc. in respect of which is made punishable by Section 25A of the NDPS Act. The possession and dealings etc. in manufactured narcotics drugs and psychotropic substances etc are punishable under Section 21 of the NDPS Act, Section 23 of the said Act deals with the illegal import or export etc. of narcotic drugs and psychotropic substances etc. and Sec....
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....llowed the appeal, holding as under : "4. Heard both the sides and perused the case records. The adjudicating authority has passed the impugned order on the basis of statements given by Shri Jayesh who had gone to take delivery of Ketmaine HCL from the office of M/s Choudhary Roadways, courier companies who had exported the goods, statement of Appellant Shri Sanjay Manjibhai Ghadesariya, the emails printouts of M/s Raghunath agencies and other concerns allegedly floated by Shri Sanjay. Reliance has also been placed upon statement of one Shri Nagesh Barsale who introduced Shri Rajesh Joshi the supplier of impugned goods to Shri Sanjay. The adjudicating authority has imposed penalty on Shri Sanjay Manjibhai on charges of smuggling of goods whereas in case of Appellant Shri Kishanbhai, the penalty was imposed on the ground that he had taken delivery of one of the consignment and during investigation had thrown away some banned substances. Further that he was fully aware of activities of his brother. 5. I find that though the show cause notice and the adjudicating authority has relied upon the statements of Shri Jayesh Vadaliya or the courier companies or the persons who received ....
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....d to the Appellant Shri Sanjay. It is only statement of persons that payments were received on account of Sanjay but no other details are forthcoming as to how the same were related to Shri Sanjay. No person would permit any other person to receive payment in his account unless he is sure of any legal transaction. I also find that none of the buyers of the goods has been identified. No consignment alleged to have been exported has been brought on record. It is not appearing when the goods were exported, what mode of transportation was made, no shipping or airway bill linking with alleged exports is on record. There is no evidence as to how the Appellant paid for alleged receipt of Ketamine to the supplier. Shri Jayesh Vadaliya was not made even noticee even though he was the person alleged to be taking delivery of Ketamine and forwarding the same in name of fictitious firms. The movement of goods for export is through courier firms but nowhere the clearance of goods exported were doubted even though the export goods are subjected to testing and examination and especially in case of drugs. It is also not on record as to when and how the Appellant dealt with the impugned goods in tra....
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....counsel appearing for the Revenue, vehemently submitted that the Tribunal committed a serious error in passing the impugned order. According to Mr.Vyas, the Tribunal completely ignored, or rather, overlooked the thumping and convincing evidence on record pointing towards the involvement of the respondent in the illegal export of the Ketamine. Mr.Vyas would submit that the Ketamine Hydrochloride Powder being 25 kgs. was physically seized and was ordered to be confiscated under Section 113(d) of the Act 1962. The order of confiscation never came to be challenged and the same has attained finality. 18. Mr.Vyas would submit that during the investigation the statements of the accomplices, the retrieval of the emails operated by the respondent and the international despatch details reveal that an approximate 165 kgs. of the Ketamine Hydrochloride Powder had been procured by Sanjay from Aurangabad which was later exported without obtaining the permission from the Narcotics Commissioner. In such circumstances, the Ketamine Hydrochloride Powder of the quantity of 165 kgs. was not physically available and, therefore, the order of confiscation under Section 113(d) of the Act 1962 could not b....
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.... Judicial Magistrate on 4th July 2009. He would submit that the emails relied upon by the Revenue were collected from unknown sources. No incriminating documents were found from any of the premises of the respondents herein. 26. Mr.Trivedi would submit that the department has failed to adduce any credible evidence as to when the export of the Ketamine Hydrochloride Powder took place. He would also submit that the Adjudicating Authority has not been able to indicate in any manner as to what preparation the respondents herein had made for the alleged illegal export of the 25 kgs. of the seized consignment. 27. He would submit that the procedure as prescribed under Section 138(c) of the Act 1962 was not followed before taking the printouts of the emails. There is no certificate from the person who had operated and was incharge of the computer. 28. In such circumstances referred to above, Mr.Trivedi prays that there being no merit in both the appeals, those may be dismissed. ANALYSIS : 29. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the Tribunal committed....
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....n DCIT vs. Marudhar [245 ITR 138], laid down the following four tests to determine whether the question involved is one of fact or law : "(1) As the Tribunal is the ultimate fact-finding authority, if it has reached certain findings upon examination of all relevant evidence and materials before it, the existence or otherwise of certain facts at issue is a question of fact. (2) Any inference from certain facts is also a question of fact. If a finding of fact is arrived at by the Tribunal after improperly rejecting evidence, a question of law can arise. (3) While the Tribunal acts on materials partly relevant and partly irrelevant, it can give rise to a question of law if it is impossible to say to what extent the irrelevant material was used to arrive at the finding. Such a finding is vitiated because of the use of inadmissible material. (4) Where any finding is based on no evidence or material, it involves a question of law." 33. In the aforesaid context, and more particularly, keeping in mind the evidence in the form of statements recorded under Section 108 of the Act, we must look into the observations of the Supreme Court in the case of Collector of Customs, Madras ....
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....not received in the factory. In the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V. P. (order dated 8th October 2003 in Civil Appeal No. 10585 of 1996), the Supreme Court held as follows: "Whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. "The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says : There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probabili....
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....its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. The other; cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Batch v. Archer (1774)1 Cowp. 63 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive 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 S.106, Evidence Act, the burden to establish those fac....
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....ns of the Judge...." RELEVANT PROVISIONS OF LAW : 37. Section 113(d) of the Act 1962 is reproduced below : "113(d) Confiscation of goods attempted to be improperly exported, etc. The following export goods shall be liable to confiscation : - (a) to (c) 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;" 38. The word 'prohibition' has been derived from the word 'prohibit' which means to forfeit by law or authority. 39. Section 2(33) of the Act 1962 defines what is prohibited goods, which is as follows : "'prohibited goods' means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with;" 40. Section 114(i) of the Act 1962 reads thus : "114. Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to ....
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....within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). SECTION 125. Option to pay fine in lieu of confiscation.- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to subsection (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under subsection (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods." 43. The Supreme Court, while interpreting Sectio....
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....of the FERA and the Income Tax Act held in para 31 as follows : "31. Leave apart, even if the officers of the Enforcement intend to take action against the deponent of a statement on the basis of his inculpatory statement which has been subsequently repudiated, the officer concerned must take both the statements together, give a finding about the nature of the repudiation and then act upon the earlier inculpatory one. If on the other hand, the officer concerned bisects the two statements and make use of the inculpatory statement alone conveniently bypassing the other, such a stand cannot be a legally permissible because admissibility, reliability and the evidentiary value of the statement of the inculpatory statement depend on the bench mark of the provisions of the Evidence Act and the general criminal law." 46. Holding in categorical terms that Section 24 of the Indian Evidence Act shall apply, it was held: "But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua no....
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....ons or order penalty in exceeding 5 times of the amount of value involved in any such contravention may be imposed. Section 71 of the Act provides for burden of proof in certain cases. Sub-section (2) of Section 71 provides for burden of proof that foreign exchange acquired by such person, has been used for the purpose for which permission to acquire was granted, shall be on such person. The Act as Special Act confers various powers under the authorities. Even if salutary principle 'mens rea' and 'actus reus' in the proceedings under the Act may not be held to be applicable, it is now a settled principle that presumption of innocence as contained in Article 14(2) of the International Covenant on civil and political rights is a human right, although per see it may not be treated to be a fundamental right within the meaning of Article 21 of the Constitution of India. Sub-section (2) of Section 71 places burden of proof upon an accused or proceedee only when the foreign exchange acquired has been used for the purpose for which permission to acquire it was granted and not for mere possession thereof. The Parliament advisedly did not make any provision placing the burden....
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....g of Section 24 of the Evidence Act. 51. There is no prohibition under the Evidence Act to rely upon retracted confession to prove the prosecution case so as to make the same the basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained on the confessional statement. The Court is required to examine whether the confessional statement was voluntary; in other words whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that the Court would seek assurance getting corroboration from other evidence adduced by the prosecutio....
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....o imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does may act, shall be punishable. The term 'any act' excludes the notion that the final act short of actual commission is alone punishable, and the notion that any of the other acts would be without the ranges of this section is probably derived from the ruling in the English cases cited........... * * * The difficulty with s. 511 might easily have been removed by saying that where in such an attempt using the word in the larger sense, any person does any act towards the commission of an offence he shall be held to have committed an 'attempt' within the meaning of this section. That I take to be the real meaning and drift of the secti....
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....four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit and, if the third stage is successful, the commission itself. Intention alone or intention followed by preparation are not sufficient to constitute and attempt. But intention followed by preparation followed by any 'act done towards the commission of the offence' is sufficient. 'Act done towards the commission of the offence' are the vital words in this connection." 60. In Veerayya vs. Emperor (1935) MWN 651, Burn J., held that the accused, who was found to be making some preliminary diggings, which were necessary to remove the earth so that he would get at a stone slab fixed to a Buddhist stups, was not guilt under section 511, Indian Penal Code, and the learned Judge further held that his act amounted to a preparation and not to an attempt to commit theft. 61. In Muniratnam Reddi, In re : (1955) AWR 53, a Bench of the High Court of Judicature of Andhra at Guntur, consisting of Subba Rao, C.J., as he then was, and Satyanarayana, J., while defining "attempt to commit murder" pointed out as follows :- "The crucial words in section 511, Indian Penal Code, are tha....
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....it can safely be held that he committed an offence of attempt to commit a particular offence. It is not necessary that the act which falls under the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. That act may fall at any stage during the series of acts which go to constitute an offence under section 511 of the Indian Penal Code." 64. In Abhayanand vs. State of Bihar, MANU/SC/ 0124/1961 : 1961 CriLJ 822, two learned judges of the Supreme Court approved the decision and the reasons therefore in the matter of the petition of R.Maccrea, MANU/UP/0046/1893 : ILR (1893) All. 173 and the views of the Supreme Court were summarised in paragraph 26 of the Judgment as follows : "We may summarise our views about the construction of S. 511, I.P.C., thus : A person commits the offence of attempt to commit a particular offence. When (i) he intends to commit that particular offence; and (ii) he, having made preparations and with intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing ....
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....rrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case. 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 any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states that 'any person who attempts to contravene, or abets a contravention of, any order made under section 3 shall be deemed to have contravened that order'. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under S.7 of the Essential Commodities Act."" 66. In Sudhir Kumar Mukherjee vs. State of West Bengal (1974) II SCJ 2, two....
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....ion of the offence being hindered by circumstances beyond his control'. This definition is too narrow. What constitutes an 'attempt' is a mixed question of law and fact, depending largely on the circumstances of the particular case. 'Attempt' defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar MANU/SC/0124/1961 : 1961 CriLJ 822 there is a distinction between 'preparation' and 'attempt'. A....
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....hion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported."" 69. In Russel on Crime, 12th Edition, Volume I, the elements of liability in attempt were set out as follows :- "The courts, and the writers, have never purported to find themselves in any special difficulty to define the mens rea of attempt. What they have found difficult is to express with precision a test whereby to decide what constitutes the physical element, the actus reus, of attempt." "In all crimes it is the law which defines the actus reus; therefore it is important to note that in the crime of attempt the question whether the accused persons conduct did reach a point which constituted an actus reus is one of law for the judge." * * * "Many suggested definitions of the actus reus of attempt as are to be found in the authorities are so vague as to be useless in practice. The one most commonly cited is contained in the judgment of Parke B. in R. v. Eagleton (1855) dear 515." "The mere intention to commit a misdemeanour is not criminal. Some act is required and we do not think that all acts towards committing a misdemeanour are indic....
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....attempted to be exported and the second part speaks about the goods being brought within the limits of any customs area for the purpose of being exported. In the case on hand, the second part has not come into play because indisputably, the goods, i.e. 25 kgs. of the Ketamine Hydrochloride Powder, were not brought within the limits of the customs area for the purpose of being exported, contrary to the prohibitions. If the goods have come with such an intention within the limits of the customs area, then the second part would definitely be attracted. However, the first part of Section 113(d) covers a larger area. Even, without being brought within the limits of the customs area, there can be an attempt to export the goods in contravention of the prohibitions. To attract the first part of Section 113(d), the process of movement of the goods for the purpose of taking them out of India must be shown to have began. 73. 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 a....
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....ection 114 of the Customs Act for violation of Section 12(1) of the Foreign Exchange Regulation Act, 1947. The contention of the department was that by virtue of the amendment of the Foreign Exchange Regulation Act, 1947 it was necessary for the exporter to submit the G.R.I. Forms declaration true in all material particulars under the provisions of Section 12(1) of the said Act. Since this was not done, the export of the goods were liable to prohibition under the above Notification No.G.S.R. 2641 dated 14-11-1969. By virtue of Section 23A the prohibition also falls, under Section 11 of the Customs Act, 1962, and hence the goods were liable to confiscation under Section 113(d) and (1) of the Customs Act, 1962. M/s. Euresian Equipments and Chemicals Ltd., Calcutta, S/Sri Laxmi Prasad Jajodia, Manick Chand Jajodia and Jugal Kishore Jajodia were the persons concerned for the mis-declaration of the goods and values of the goods exported and hence liable for penal action under Section 114(1) of the Customs Act, 1962, M/s. Euresian Equipments and Chemicals Ltd., Calcutta and its directors S/Sri Laxmi Prasad Jajodia, Manick Chand Jajodia and Jugal Kishore Jajodia were called upon to explai....
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....ich the said provisions have been introduced. The submissions that the Legislature has so intended by using the words attempt to export in Section 113(a), (b) and (d) and the analogy of the offence of attempt to commit suicide given in this connection are, in our opinion, misleading and devoid of merit. An attempt to commit suicide is indeed an offence and the act of committing suicide resuling from the successful attempt may not be considered to be an offence. This is so for the simple reason that once a person attempting to commit suicide succeeds in his attempt he places himself beyond the reach of law and no punishment is intended to be inflicted on the dead person or his heirs and legal representatives by imposing any fine or penalty, as they may in no way be liable or responsible for the said act. As we have earlier observed the liability of the goods to confiscation arises under Section 113(d), as soon as the goods are attempted to be exported and the attempt to export the goods necessarily precedes the actual export of the goods. Goods become liable to confiscation as soon as the attempt is made. There is no provision in the Act to suggest that this accrued liability is wip....
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.... they are attempted to be exported. The attempt to export necessarily precedes actual export. At the time of attempting to export the goods contrary to prohibition, the liability of the goods to confiscation arises and at that point of time when the liability to confiscation arises, the goods are goods which are to be taken out of India to a place outside India and are, undoubtedly, export goodsμ within the meaning thereof as defined in Section 2(19) of the Act. Actual export of the goods, as a result of the attempt succeeding subsequent to the stage of the attempt, is not indeed of any material consequence. The goods are export goodsμ as defined in Section 2(19) of the Customs Act, 1962 at the time the goods incur the liability to confiscation under Section 113 of the said Act. We accordingly answer the second question which came up for consideration before the Division Bench and which has been referred to the Full Bench in the manner indicated above." INCRIMINATING MATERIALS ON RECORD : 78. In the case on hand, a consignment of the Ketamine Hydrochloride Powder of 165 kgs. had already been exported. If the goods had already been exported, the question of confiscation wo....
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....ng the present consignment, received from M/s Perfect Chemicals, Aurangabad. During the investigation, it was found that M/s Bhatia Chemicals, Vapi was a bogus company. 82. Jayeshbhai Vadaliya, who is the relative of the respondent, in his statement dated 3.4.2009 recorded under Section 108 of the Customs Act, 1962, has reiterated the facts stated by him in the earlier statements dated 6.3.2009 and 7.3.2009 respectively as true. He has further stated as under : "On being shown the following L/Rs (Account Copies) of M/s Choudhary Roadways : 21098, dated 9.5.08 (1 bag) 21904, dated 4.9.08 (1 bag) 22040, dated 23.9.08 (1 bag) 22157, dated 11.10.08 (2 bag) 22489, dated 8.12.08 (2 bag) 22715, dated 19.1.09 (1 bag) 22987, dated 3.3.09 (1 bag) and on perusing the above bilties (L/Rs), he put his dated signature on them and stated that the delivery of goods of the bilties(L/Rs) shown at Sr no.1 to 6 were taken by him from Choudhary Roadways, Vapi at the instructions of Shri Sanjaybhai Gadhesariya; that the goods were brought from Waluj, Aurangabad. Shri Sanjaybhai used to come mostly alone in his Innova car while he used to come on motor bike No. GJ5 DB 745; Shri Sanjay never came to th....
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....anjay & Kishan) nor he received any phone call from them since 6.3.2009, the day the parcel was detained; that Shri Sanjaybhal and Shri Kishanbhai had a shop at 2440-2441, New Bombay Market, Umarwada, Surat which he visited 2-3 times; that Shri Sanjaybhai use to sit there and was dealing in some pharmaceutical business; that this fact was not disclosed by him in his earlier statements dated 6.3.09 and 7.3.2009." 83. Jayesh Vadaliya, during his investigation, produced a letter dated 5.3.2009 issued by M/s. Bhatia Chemicals authorizing him to take delivery of the goods in question under his statement dated 6.3.2009, as also the invoice dated 06.03.2009 for rebooking the parcel for its onward delivery to Surat. The said authority letter was signed by J.B.Bhatiya, the proprietor of the company. Sanjay Ghadesariya (respondent) in his statement dated 26.6.2009 had confirmed that the authorization was signed by him and was given to Jayeshbhai Vadaliya for taking delivery of consignment transported from the Aurangabad. 84. The statement of Sanjay was recorded under Section 108 of the Customs Act, 1962 on 21.4.2009 and 29.04.2009 respectively, wherein he has stated, "he knew Shri Jayeshb....
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....local Angadia for the delivery of the money in Aurangabad and accordingly, Shri Rajesh Joshi received the money; in the year 2006-2007, he was in contact with foreign buyers to whom he was supplying Suhagra/Silagra through illegal channels; the said buyers enquired about Ketamine and accordingly, he had purchased the product to supply it to the foreign buyers; On being asked regarding the quantum of Ketamine purchased by him from Aurangabad till 24.06.2009 and the mode of transportation from Aurangabad to Surat, he stated that Initially in the year 2007-2008, he had ordered few consignments each of 4 to 5 Kgs which were sent from Aurangabad to Surat by Shri Rajesh Joshi through Shrinath Travels and later, on increasing demand, he had ordered larger quantity I.e. 25 to 50 Kgs each time which were sent from Aurangabad to Vapl through Choudhary Roadways and from Vapi the said parcels were either re- booked in some transport company for onward transport to Surat or were brought in personal vehicles. Accordingly, in all about 25 Kgs of Ketamine had been received by him from Aurangabad to Surat by Shrinath Travels and about 160 Kgs of Ketamine had been received in the lot of 5-6 consi....
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....ake, on which he had net connection of "Reliance Infocomm" through which he used to access his email accounts; that he was the only person who could access the above email address; that Ketamine was handed over to the local courier in Surat for sending to Mumbai to M/s Pacific Express Corporation and one Mr. Shri Harshad to further connect to foreign country; that the material used to be packed by him as per the quantity required by the customer and the same was handed over to Shri Jayesh Vadaliya for further giving it to Purohit Couriers in Navsari; that on the parcel they used to write the name of the person and his cell number and the address of the customer abroad was written on the packed parcel inside; that on reaching Mumbai, Shri Harshad or any person of M/s Pacific, to whom the parcel was sent by him from Navsari used to tear off the outer packing and booked for overseas buyers as per the address written on the inside packing of the said parcel; that earlier Shri Harshad was working with M/s Pacific Express Corp and later on he started working for a company called Swiss International; that after booking the parcel, Shri Harshad or persons of M/s Pacific Express Corporation....
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....5.03.2009 in the name of M/s Bhatia Chemicals, plot No 2219, GIDC Estate, Ankleshwar, Tel: 9979386867 addressed to the Dispatch Manager, Choudhary Roadways, Vapi authorizing a person as Mr. Anuj Shah; that the authority letter was signed by him as proprietor "J.B. Bhatia"; that he had asked Shri Jayesh Vadaliya to disclose his name as Shri Anuj Shah before the said transport Company. On being asked to reproduce the signature appearing on the above said letter he reproduced the same in his above said statement; that apart from the above letter, he had also handed over to Shri Jayesh Vadaliya one invoice number: JB/BC001dtd. 06.03.09 in the name of M/s J.B. Enterprises, A 212 Simit Shopping Centre, GIDC Char Rasta, Vapi, Tel: 9979386867; that in the invoice the consignor was shown as M/S 1 B. Enterprises and the consignee was shown as M/s. Bhatia chemicals, D-4/11 GIDC, Sachin, Surat; that the signature appearing on the invoice as authorized signatory was signed by him. He further reproduced the said signatures in his above said statement; that the above letter of M/s Bhatia Chemicals and bill of J.B. Enterprises were prepared by him on his laptop and the prints out of the same we....
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....ng with his family and Shri Kishanbhai for Rajkot; that at Rajkot he stayed at his sister's house for 10 to 12 days and then came back to Surat to approach the advocate and after 2 to 3 days again left for Rajkot; that thus after 06.03.2009 for a month and a half he traveled between Rajkot and Surat. He was also shown the statement of Shri Kishore Yadav recorded on 09.05.2009 and he had gone through the said statement and confirmed that Shri Kishore Yadav was one of his employees working in their Sachin factory and the facts stated by him in his above statement are true and correct. In token of having seen the same he put his dated signature on the last page of said statement. He was further shown the LR's bearing numbers 21098 dated 09.05.2008, 21904 dated 04.09.2008, 22040 dated 23.09.2008, 22157 dated 11.10.2008, 22489 dated 08.12.2008, 22715 dated 19.01.2009 of M/s Choudhary Roadways, produced by Shri Nandkishore R. Choudhary, Proprietor of M/s Choudhary Roadways under his statement dated 19.03.2009; that he had gone through the same and confirmed that Ketamine Hydrochloride powder was transported from Aurangabad to Vapi as ordered by him to one Shri Rajesh Joshi ....
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....mail id. He further stated that in the trade of Ketamine, buyers as well as sellers do not disclose their actual identity and for this reason he was also corresponding with them from his email id's i.e [email protected] and raghunaath@ hushmail.com which were opened by him by mentioning fake name as well as fake contact numbers and address. Regarding his other B2B portals (trade portals), he gave the same as under: (1) Name: Indianmart.com Username: [email protected] Password: Sankis (2) Name: Tradekey Username: raghunaath Password: sankis (3) Name: "trademart".com Username: raghunaath Password : Do not remember. (4) Name: "Alibaba".com Username: [email protected] Password:-- (5) Name: "Tradeboss.com" Username: raghunaath Password:- (6) Name: "Tradeholding.com" Username: raghunaath Password He further stated that for marketing the product Ketamine, Viagra, Suhagra, Alprazolam, Diazepam etc. he had opened the above said B2B portals by mentioning fake name, address and contact numbers; that except his B2B portal in his Indiamart.com, he had shown the of his company Sudarshan Chemicals"; that he opened his B28 portal on tradev....
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....stomers. Regarding the charges of parcel from Surat to Delhi and Delhi to abroad, he stated that M/s On Dot Courier have charged are Rs. 300 to Rs. 500 per parcel for delivery to Delhi and M/s Online Logistics have charged him Rs. 3500 to Rs. 4000 per parcel for delivery at UK, USA etc; that all the payments were made in cash; that the payments to "Online Logistics, Delhi" were sent by him through Angadia M/s Madhav Magan in Varachha and payments to Surat Courier, on Dot were made directly by him or Shri Jayesh. On being asked whether he had taken NOC (No objection certificate) form Narcotics Commissioner for exports of Ketamine Hydrochloride from his aforesaid 3 firms, he stated that he had not taken any NOC from Narcotic Commissioner for the exports. On being asked regarding the various mobile phones belonging to him or being used by him, he stated the mobile numbers as under : (1) 9979386867 (2) 9979386900 (3) 9375093755 He further stated that the mobile connection stated at serial number (1) and (2) are prepaid connections arranged by his friend and are in other names; that the mobile number 9375093755 is the mobile number he used and it is in the name of o....
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....e name and number was forwarded to the buyers abroad and they transferred the funds through their channel; that he used to get a call on mobile number 9979386867 for the funds and used to tell them to deposit the funds through Angadia as he did not meet them; that he used to give them the name "Ramjibhai Desai" for the collection of the funds. On being asked whether the payment for supply of Ketamine and other tablets was received by him in advance or after the delivery of products, he stated that payments were mostly received in advance or in some cases payment were also received after the delivery of the products. He was further shown e-mail print outs taken out from his email account available at page no.137,138,131 & 44 in file no.02 and on being asked, he stated that the same related to transfer of funds from foreign buyers through western Union Money Transfer against supply of Ketamine powder. On being asked regarding the name of the person who had booked parcels of Ketamine powder at Choudhary Roadways, Aurangabad, he stated that Shri Rajesh Joshi was managing everything including booking at Aurangabad and he only used to inform him on mobile regarding dispatch of g....
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....all.com asking him to send 250GBP so that he could send him 100 grams of Ketamine and has also forwarded the name of "Toyota Baghu" to transfer the funds. (iv) At page no. 25, it appears that there is an e-mail correspondence on 28.02.09 from his e-mail Id by Shri Sanjaybhai on "[email protected]" to one "[email protected]" wherein he had Intimated that he was not able to pick up the funds and requested to change the name to KANTILAL JAIN from AJIT JAIN. Further, in reply to the said message, some "J" from "[email protected]" has written on 02.03.09 that he would try to have the change made the next day and further asked whether K (Ketamine) has been already shipped as it didn't arrive last week as requested by him. Further, In the email message available at pg. 24 the said "J" from "[email protected]" has written on 03.03.09 that the name of the Western Union was changed and also written that they have no stock of "K" (Ketamine) and hope to receive the delivery in the next day or two. Further, In the email message available at page no.22, Shri Sanjaybhai on 05.03.09 from his e-mail id "raghunaathagencies @yahoo.com" had intimated to "[email protected]" that t....
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.... by the end of next week (before next weekend) so please don't delay and wait on any more emails from me... just get the goods sent! Thanks" (vi) At page no.78 &77, it appears that there is an e-mail sent by Shri Sanjaybhai 18.02.09 from e-mail id "[email protected]" to one "viagralad@ hush.com" wherein he had sent two names i.e. Ajit Jain and Ojas Sheth and further intimated that the price of K (Ketamine) remained same as usual and asked them how much they would be requiring so that he can accordingly get the stuffs ready. Further, in reply to the same some "J" from [email protected] has written, on 19.02.09, as under: "Hi, I need 1KG of K then. Please only send 1KG. I will make the outstanding payments (Alp and Diaz) within the next day and send you the details as soon as possible. With the K... we require delivery VERY VERY QUICKLY. Unless it be here early next week, it is no use to us. So please send it quickly, and if it wont be early next week, please tell me now as we may not need the order in that situation, I look forward to hearing from you soon. Thanks, J. (vii) At page no.131, there is an e-mail sent by Shri Sanjaybhai on 28.01.09 from his e-mail id "r....
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....from them as the payment for the 100 Alpra and 1100 Kama and pending K (Ketamine). (iii) In the e-mail correspondence available at page no. 105, on 21.02.09 [email protected] wrote [email protected], that he would send only 200$ for 575 gms. In response raghunaathagencies @yahoo.com intimated that "OK not an issue, they would send the goods asap" (as soon as possible). In the e-mall correspondence available at page no. 106 [email protected] again intimated on 23.02.09 that they would send the goods as soon as they have the transfer details from [email protected] side. It was further intimated that everything is ready on their end and the container with 575 gms of material i.e. Ketamine is ready to be shipped. (iv) In the e-mail correspondence available at page no. 113, Raghunaath Agencies wrote to bob_coalition@ hushmail. com, on Monday, February 23, 2009 6:58 AM as under: "As soon as we have the transfer details from your side we have the goods ready for dispatched for you. The headache and the system involved for shipping is the same even if v ship 50 grams or 500grams or 5kgs. We can ship you upto 5kgs of material every time as an....
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....nbhai had visited the factory on 06.03.2009 at around 7 pm on different vehicles i.e. on bike and Scooty; they had brought with them three carton boxes which were kept near the office door; thereafter he was called by Shri Sanjay and Kishanbhai to their office and was told by Shri Kishanbhai that he had to go out with him; he was told to take all the three cartons and accordingly, he carried all the three cartons which were not heavy in weight, but as per his knowledge, they contained strips of medicines; he and Shri Kishanbhai left the factory on his (Kishanbhai's) bike; the bike was driven by Shri Kishanbhai and he took hold of the cartons; he did not remember the motor bike number; he was taken to a road leading to Palsana where he threw one carton as directed by Kishanbhai around 8 0'clock at night; they proceeded on the road towards Palsana and threw away the second carton; the third carton was thrown away as told by Shri Kishanbhai somewhere in a Nala where there was water and it was a place near Hojiwala Estate; he did not know what kind the said medicines were and he was not at all told anything about the same by both Shri Sanjay and Shri Kishanbhai; they came back ....
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....o Service, Mumbai since 2004 and from the year 2007 he was working as a Manager and looking after all the work of their Mumbai office; owner of their courier company is Shri Nagaraj Purohit; their company had offices in Ankleshwar, Sachin and Navsari; he had gone through the statement dtd. 17.08.09 of Shri Prem Singh, Branch Manager of their Navsari office and confirmed that the statement given by Shri Prem Singh was true and correct and he agreed with the same; the goods discussed in the above statement of Shri Prem Singh were delivered by them to M/s Pacific Express Corporation, Mumbai and Shri Harshad of M/s Swiss International & Cargo Inc., Mumbai; They were informed that the parcels contained Medicines and were to be delivered carefully; as soon as the said parcels arrived in their Mumbai office, they used to receive the phone call either from M/s Pacific Express Corporation, Mumbai or Shri Harshad of M/s Swiss International & Cargo Inc., Mumbai and accordingly the delivery was made by them; the parcels weighed about 5-6 kgs and the names of the recipient M/s Pacific Express Corporation, Mumbai or Shri Harshad of M/s Swiss International & Cargo Inc., Mumbai were written on ....
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....ed in his earlier statement dated 19.8.2009; about the payment received by him from Sanjay M. Gadhesariya, he stated that he received the money as stated in his statement dated 19.8.2009 and the same was collected from Angadia víz. Ramesh Kumar Ambalal, near Laxminarain Mandir, Andheri East; that the payment mentioned in his statement dated 19.8.2009 includes the freight amount; that he submitted the AWB No.40940 dated 20.5.2008 of Continental India Courier Service and Invoice No.NCC01-08 dated 7.5.2008 and he put his dated signature on the same in token of having furnished the same; that the address of M/s. Continental India Courier Service as appearing on the AWB is 4, Bismillah Building, Ranade Road, Dadar West, Mumbai 400028; that he had handled about 10 consignments of Sanjay M. Gadhesariya in the past." 93. The statement of the proprietor of M/s. Pacific Express Corporation was recorded on 20.08.2009 wherein he has stated as under: "on being asked regarding the parcels (1) weighing 6 kgs. Received from M/s. Purohit Courier & Cargo Service, Navsari on 19.2.2009 (1)weighing 5 kgs. received from M/s. Purohit Courier & Cargo Service, Navsari on 8.2.09 and (III) one par....
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....and constitute substantive evidence. A belated retraction after considerable length of time would not have the same efficacy in law as the retraction made at the earlier point of time from the day of the statement. 96. The attempt to export 'prohibited goods' should be appreciated from the point of inquiries from the foreign buyers for the prohibited substance consequent upon which the respondents made arrangements for procuring the same from Aurangabad. After the arrangements were made, the goods were in fact transported from Aurangabad albeit as the 'Benzahydrol Powder' for onward exports via Vapi, when the same were intercepted and seized pursuant to the intelligence inputs. Pertinently, Jayesh was already authorized vide the letters dated 05.03.2009 and 06.03.2009 respectively by Sanjay to take delivery of the consignment and for rebooking the parcel for onward transit towards the intended export, had the substance not been seized at Vapi. The overt act of physical movement of the prohibited substance was proximate to the intention of respondents to take them out of India which thus constitutes an 'attempt' to export as per Section 113(d) of the Customs Act, 1962. 97. The int....
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....he computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not then any respect in which it was not operating properly or was out of operation during (that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, w....
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.... it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.- For the purposes of this section,- (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 99. We do not find any merit in the above submission of Mr.Trivedi. The truth or the relevance of the documents has been admitted in no uncertain terms by the respondents in their statements recorded under Section 108 of the Act 1962. In such circumstances, it is too much for the respondents to say that the electronic evidence could not have been taken into consideration. In fact, the electronic evidence on record fortifies what has been stated by the respondents in their statements recorded under Section 108 of the Act. 100. In the aforesaid context, we may refer to one order passed by the CESTAT Principal Bench, New Delhi, in the case of Laxmi Enterprises vs. Commissioner of Customs (Prev.), New....
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....mercial invoices pertaining to the goods imported from laptop and mobile phones during the course of the search indicating procurement of goods from the foreign supplier at significantly higher prices than the amount declared to the department at the time of filing the Bills of Entry. These facts and the payment of money through extra banking channels were admitted during the investigations. Accordingly, the Adjudicating Authority rightly rejected the transaction value of the goods in terms of rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. OUR FINAL CONCLUSIONS MAY BE SUMMARISED AS UNDER : 103. The statement made before the customs officials is not a statement recorded under Section 161 of the Code of Criminal Procedure, 1973 and, therefore, it can be said to be a material piece of evidence collected by the customs officials under Section 108 of the Customs Act. 104. If a statement recorded under Section 108 of the Customs Act incriminates the accused, inculpating him in the contravention of the provisions of the Customs Act, it can be considered as a substantive evidence to connect the accused/individual with the contravention of the p....