TaxTMI 
TaxTMI 
2022 (4) TMI 316
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....t of the Order in Original dated 30th March 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 t....
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....ry situated at Plot No. D-1/9, Hojiwala Estate, Sachin, Surat, whose owner is one Shri Kishanbhai 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 Mana....
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....se, Varachha, Surat; that at that time also Shri Sanjaybhai had given to him one similar bogus letter, but he had given his identity 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 signatur....
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....at Sachin, Surat, was also searched under the panchnama dated 07.03.09 (RUD-4), however, no incriminating documents/goods were found during the search. 6. It is 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 date....
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....Ketamine is a tranquilizer most commonly used on animals. The liquid form can be injected, consumed in drinks, or added to smokable materials. The powder form can be used for 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 p....
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.... (c) Shri Rajesh Joshi - Rs. 10 lakh (Rupees Ten Lakh)" 14. The respondent, being dissatisfied with the aforesaid order passed by the Commissioner, went in appeal before the Tribunal. The Tribunal, vide order dated 1st October 2019, allowed 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. Furt....
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.... statement dt. 11.08.2009 he stated that he collected the said papers from office of Shri Sanjay. The payment alleged to have been received by Appellant on account of export goods is also based merely upon hearsay. None of the payments could be linked 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 ....
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....xport 25 kgs. of the Ketamine Hydrochloride Powder. 16. Being dissatisfied with the aforesaid order passed by the Tribunal, the Revenue is here before this Court with the present Tax Appeals. SUBMISSIONS ON BEHALF OF THE REVENUE : 17. Mr.Dhaval D.Vyas, the learned senior standing 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 whi....
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....f the Ketamine Hydrochloride Powder is baseless and there is no legal evidence to substantiate such allegations. Mr.Trivedi would submit that the Adjudicating Authority failed to take into consideration the fact that the statements recorded under Section 108 of the Act came to be retracted before the Chief 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 refer....
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....of law the authority came to a correct conclusion upon a matter of fact. Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of any principle of law, the issue raises a mere question of fact. 32. The Delhi High Court, in 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. ....
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....(86) E.L.T. 333], the CESTAT, West Zonal Branch, Mumbai held that it is not necessary for the department to establish a fact with mathematical precision. Once the presumption as to the existence of a fact is raised against the assessee that the input has not been transported in the vehicle mentioned in the invoices, it is reasonable to say that the inputs were 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 h....
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....rtainty is a myth, and as Prof Brett felicitously puts it all exactness is a fake" El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. 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. 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 clan....
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....grees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must in the last analysis, rest on robust common sense and, ultimately, on the trained intuitions 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 whi....
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.... agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding 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 tha....
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....therefore, it is not necessary for the Customs authorities to prove that any particular person is concerned with their illicit importation or exportation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling." 45. In K.T.M.S. Mohd. and another vs. Union of India, MANU/ SC/0349/1992 : (1992) 3 SCC 178, the Court made a distinction between the provisions 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 ....
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.... India, MANU/SC/8446/ 2008: 2009 (233) ELT 157 (SC), the Supreme Court considered the effect of retraction of the statement in proceedings of penalty under Foreign Exchange Regulation Act, 1973. The Supreme Court held that indisputably a confession made by an accused would come within the purview of Section 24 of the Indian Evidence Act, 1872. The proceedings under the Act are quasi criminal in nature. Section 50 of the Act is penal provision. It prescribes that in the event of contravention of any of the provisions of the Act or the Rules, directions 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 o....
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.... object of the Act in empowering the Customs Officer to record evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband, to avoid or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act for initiating proceedings for further action of confiscation of the contraband or imposition of penalty. By virtue of authority of law the officer exercises the power under the Act is an authority, within the meaning 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....
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....nd abstains from completing the attempt. The question whether the act is an act of preparation or an act in the attempt and towards commission is a fact to be determined upon the evidence. It is in most cases a question for the jury to distinguish between an act before attempt has begun, an act after attempt begun, and towards commission of the offence attempted, and an act independent of the attempt altogether." 53. Blair, J., concurring with Knox, J., observed as follows :- "It seems to me that section uses the word 'attempt' in a very large sense; it seems to 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' exclude....
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....nd, on the facts upheld the conviction for attempt to cheat. 58. In Narayanaswamy Pillai vs. Emperor (1932) MWN 545, the accused was held not to be guilty under section 511 of the Indian Penal Code, because though he intended to transport opium into French territory, he was frustrated before he crossed the border. 59. In Asgarali Pradhantha vs. Emperor ILR (1934) Cal. 54, a Bench of the High Court at Calcutta, consisting of Lord-Williams and Mcnair, JJ., chose to sum up the law in India on the aspect of "attempt" in the following terms :- "So far as the law in India is concerned, it is beyond dispute that there are 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 accus....
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....completing that offence, but falling short of completion by the intervention of clauses outside the volition of the accused, or because the offender of his own free will desisted from completion of his criminal purpose for some reason other than mere change of mind." 63. In State vs. Parasmal MANU/RH/0014/1969, Tyagi, J., defined "attempt" in the following terms : ".... When a person intends to commit a particular offence and then he conducts himself in such a manner which clearly indicates his desire to translate that intention into action, and in pursuance of such an intention if he does something which may help him to accomplish that desire, then 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 ....
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....t. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his digest of Criminal Law, Art. 50 defines an attempt as follows :- "An act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. 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....
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....e Foreign Exchange Regulation Act, the Imports and Exports (Control) Act and the Customs Act. But the Additional Sessions Judges acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had 'attempted' to export silver in contravention of the law. The High Court upheld the acquittal." 68. Sarkaria, J. defined as to what would constitute an 'attempt' in paragraph 13 of the judgment as follows :- "Well then, what is an 'attempt' ? Kenny in his Outlines of Criminal Law defined 'attempt' to commit a crime as the 'last proximate act which a person does towards the commission of an offence, the consummation 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....
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....ference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver. The fact that the truck was driven up to a lonely creek from where the silver could be transferred into a sea/faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course of inter-coastal trade. But, the circumstance that all this was done in a clandestine fashion, 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....
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....l attempt. But, if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime...." 71. In Halsbury's Laws of England Halisham Edition, Volume 9, at page 41 "attempt" has been defined in the following terms :- "Any overt act immediately connected with the commission of an offence, and forming part of a series of acts which, if not interrupted or frustrated, would end in the commission of the actual offence (assuming the commission of that offence to be possible), is if done with a guilty intent, an attempt to commit the offence." 72. From the conspectus of the above discussed case-law, Section 113(d) can be divided into two parts. The first part speaks about the goods 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 t....
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....or physical element towards taking of the goods out of India is made out on the facts and circumstances of the case, it will be far fetched to invoke the first part of Section 113(d) of the Act. 74. Section 113(d) of the Customs Act makes it clear that the liability of goods for confiscation arise as soon as the goods are attempted to be exported and an attempt to export the goods necessarily precedes the actual export of the goods. This proposition has been propounded by the Full Bench of the Calcutta High Court in the case of Euresian Equipment and Chemicals Ltd. and others vs. Collector of Customs and others, AIR 1980 Cal 188. 75. In the above said decision, there was a show cause notice issued by the department for taking penal action against the exporter under Section 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....
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....se purposes indeed cover very very wide fields. Some of the purposes for which the prohibition may be imposed as stated in Section 11(2) are, prevention of smuggling, prevention of shortage of goods of any description and prevention of the contravention of any law for the time being in force. Section 113 provides for liability of the goods to confiscation in case of any violation of the prohibition imposed under Section 11 of the Act and Sections 11 provides for personal penalty for those whose acts or omissions render the goods liable to confiscation under Section 113. To construe the said sections to mean that Section 114 can only be attracted when the goods are attempted to be exported and will have no application when goods have in fact been exported will defeat the purpose and object for which 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 resul....
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.... We must, therefore, hold that by virtue of Section 23A of the Foreign Exchange Regulation Act, 1947 the provisions of Sections 113 and 114 of the Customs Act, 1962 are attracted, when there is a contravention of Section 12(1) of the Foreign Exchange Regulation Act, 1947 in relation to goods which had in fact been exported. This was indeed the first question which came up for consideration before the Division Bench and has been referred to the Full Bench and our answer to this question is therefore in the affirmative. 26. An order by the proper officer permitting clearance and leading of the goods under Section 51 of the Customs Act does not effect the position. We have earlier noticed that under Section 113 of the Customs Act export goods incur the liability to confiscation at the stage when 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, ex....
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....ydrochloride Powder and not Benzahydrol Powder as declared under the invoice dated 3.3.2009 by M/s Perfect Chemicals. During the investigation it was found that no unit of M/s Perfect Chemicals was existing at the given address. 81. During the course of investigation, the statement of one Nandkishor Rupchand Chaudhary, proprietor of Choudhary Roadways, Vapi was recorded on 19.03.2009 and Rameshwar Amarsingh Takale, In-charge of Choudhary Roadways, was recorded on 19.05.2009. Both the said persons have stated that, the present consignment received from M/s Perfect Chemicals, Aurangabad was for M/s Bhatia Chemicals, Vapi. It was further stated by the said persons that one Jayeshbhai Chunilal Vadaliya, under the written authority of M/s Bhatia Chemicals, Vapi, had been collecting all the consignments, including 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 state....
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.... calls received on his mobile from a mobile No.9375093755 at 16.14:14 hrs., 18:48:11 hrs. and at 18:51:22 hrs.; that the said mobile phone belongs to Shri Sanjay Gadhesariya whose photograph he had identified and he had talked to him on 5.3.2009 and 6.3.2009 with regard to taking delivery of the parcel; that the above Mobile No.93750 93755 was being used by Shri Sanjaybhai himself; that the mobile No. of Shri Kishanbhai Gadhesariya was 93752 64220. He reiterated that the goods or chemical which they brought from Aurangabad through M/s. Choudhary Roadways were being exported out of the country, but he did not know how and where they were exporting; that he was working with them in their looms factory situated at Hojiwala Estate, Sachin, but the same factory was closed after this incident; that he neither met them (Sanjay & 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 ....
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....hri Nagesh Barsale for supply of 2 Kgs of Ketamine on sample basis; Shri Nagesh Barsale gave him the mobile number of one Shri Rajesh Joshi and informed him to contact Shri Rajesh Joshi on his mobile number 9822951313 for any requirement regarding Ketamine; accordingly, he contacted Shri Rajesh Joshi on his above mobile from his (Sanjay) mobile number 9979386867 and the deal was finalized; as per the deal, Shri Rajesh Joshi dispatched 2 Kgs of Ketamine to Surat from Aurangabad through Shrinath Travels and gave him the necessary receipt number; the product was then collected from Shrinath Travels by giving the receipt number; the payment for the sold consignment was made by him 107 through local Angadia called "S. Ramesh Kumar", who had transferred the money through "D Natwarlal"; the mobile number of Shri Rajesh Joshi was given to the 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 foreig....
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.... and then the lids were sealed with adhesive taps; that the foreign buyers were contacted by him from various B2B sites like Tradekey, Indiamart, Alibaba, Tradeboss etc; that he used to correspond with the foreign buyers through e-mail supply of the products from his email [email protected].; that he was also having another email address "[email protected]" which was also used to communicate with foreign buyers. On being asked as to when the above said email accounts were opened by him, he stated that the above email id [email protected] was opened by him in the year 2005 and the email id: [email protected] was opened by him in 2007. On being asked as to how he accessed his above said email account and who were the other persons who could also access the above said accounts, he stated that he had a laptop, Compaq make, 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 ....
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....name of his friend in Rajkot is Shri Vijay Pandhi and his contact number is 9427738100; that he is staying on Kalawad Road in Rajkot and he did not know his full address, but he was unaware about the payments received by him from customers abroad." 86. In his further statement dated 26.6.2009 Sanjay confirmed the facts mentioned in his earlier statements and had stated as under: "On being asked his whereabouts on 06.03.2009, he stated that as usual he went to his office at 2440-41, New Bombay Market in the morning of 06.03.2009 at 11 a.m. and remained in the office till 6:00 PM in the evening; that at around 01:00 PM, he called Shri Jayesh Vadaliya to his office and asked him to go to M/s Choudhary Roadways, Vapi for collecting one parcel booked from Aurangabad in the name of M/s Perfect Chemical, Aurangabad; that he had also handed over to him one Authority letter dated 05.03.2009 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....
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....ojiwala factory at around 07:00 PM on two different vehicles; that he immediately collected 3 packets in which Alprazolam tablets, Diazepam tablets, Lorazepam tablets and some other tablets were kept in Hojiwala office and some Ketamine Powder which was kept in plastic bags and asked his brother Shri Kishan take an employee Shri Kishore Yadav and throw. away the tablets and powder; that his brother Shri Kishan acted as per his direction, but was not aware about the activities and dealings in such types of Ketamine powder and tablets. Regarding the place where Ketamine Powder was thrown by him on the night of 06.03.2009 and its quantity, he stated that he had thrown the Ketamine powder of quantity 20 to 25 Kgs in the gutter; that after destroying the above powder and tablets, he and his brother left the factory for home around 10.00 PM; that thereafter at 11.00 o'clock in the night of 06.03.2009, he left Surat along 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 ....
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....elated to the above said consignment and produced by the transport under the above said panchnama; that he had gone through the above said panchnama and documents and confirmed that the same type of invoice of Perfect Chemicals as mentioned above was received by him along with all the consignments of Ketamine transported by Shri Rajesh Joshi from Aurangabad. However on each occasion the description of Ketamine powder was wrongly stated to be Benzahydrol Powder, Sodium Salt etc., in the bills of Perfect Chemicals accompanying the said goods and after the Ketamine consignment reached Surat, he used to destroy the bills. Regarding the main buyers of Ketamine to whom he had supplied Ketamine abroad stated main buyers were [email protected]", ksceince@hushmail. com and [email protected]. Regarding the names and persons of the above stated buyers, he stated that he did not know their names as he only used to contact them on their above said email 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 raghunaathagencies@yahoo.....
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....e of sending the material from Surat to Mumbai for onward shipment to foreign buyer and the same was sent along with the goods to the foreign buyer; that on one occasion in the end of February, 2009, one consignment of Ketamine was sent to Rajkot through bus Kathiyawad Travels and the same was received by Shri Vinay Upadhyay who then sent the said material to Delhi under the invoice of Raj Exports, Metoda GIDC, Rajkot sent by him from Surat inside the parcel of Ketamine; that in Delhi, the said parcel was received by "Online Logistics" located at Cannaught Place, Delhi and then exported from Delhi in the name of Raj Exports. Regarding other exports from Delhi, he stated that on 8 to 10 occasions, he had also sent parcels of Ketamine powder from Surat to Delhi through On Dot Couriers, Belgium Tower, Surat. The said parcels were booked in the name of either Regal Chemicals or Shraddha Chemicals for onward delivery to M/s Online Logistics, Delhi and from Delhi, and from Delhi, the parcels were exported to the foreign customers. 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. 50....
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....orazepam, Suhagra, Silagra, Ketamine etc. during the period from January 07, 2009 to March 5, 2009; that most of the malls are regarding illegal export of above said products. Regarding the receipt of payments from the foreign buyers against the export of Ketamine and other tablets, he stated that payments were received by him through Western Union Money Transfer, Money Gram and hawala payments through Angadlas. He further stated that for transfer of money through Western Union or Money gram, he used to inform the buyer about the names for transfer of money through email and accordingly the foreign buyers have transferred the amount and Informed the MTCN number (Money Transfer Control Number) through mails; that after receipt of MTCN number, the funds were collected from the Western Union/ Money Gram by Shri Vijaybhal his friend at Rajkot and then the same were sent to him through S.R.Angadia. He further stated that each transfer of funds through Western Union or Money Gram was below 50000/-; that many times, the funds were also transferred through hawala and in such cases the name and number was forwarded to the buyers abroad and they transferred the funds through their c....
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....uld require 5kgms bulk dispatch to are farm. Please email back with a realistic price on your offer. PROFILE// The Oreintel herbal Company import and distribute a diverse range of organically certified raw materials, some of these produced from the organic farm on which we are based. Established over 20 years ago we are the leading supplier of organic herbal raw materials to the UK market and are also a major player in Europe. We Now market various other meds and pharmaceuticals worldwide. Contacts// Susan andersson Orientel herbals sales 01998786654 jeff mills Orientel herbals Markets 01998786654 Regards, Susan anderson." (ii) At page no. 3, 4 & 5, it appears there is an e-mail correspondence by Shri Sanjaybhai from his email id [email protected] to one "kssceince@ hushmail.com on 02.12.08 wherein he had intimated that he would send them 1 kilogram of Ketamine but they have to send 1000 UK Pounds in advance and after receipt of the material they have to send the balance and slowly clear the old dues. (iii) The print out available at page no. 13 is an e-mail correspondence sent by Sanjaybhai ksscience@ hushmall.com asking him ....
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....time frame bcos somethings are not in our hand and we have depend on others, if v hurry up the things it can cause confusions and make a mess. We shall once again wait for your email before moving ahead, bcos we dont want issue later in which if u do not receive the material in timely manner and after that u feel that the material Is of no use to u. We would also thus accordingly request your buyers ahead for the same. Let us know if u made the transfer for the funds that u were going to make, also something for K too. With best regards," In reply to the above e-mail "[email protected]" have written as under: "I emailed you 2 days ago and said to go ahead, so you shouldn't even need these 2 further emails. Now If it isn't here by the weekend, I will look unreliable in front of my customers because I told them it would be. And again it will just mean me loosing some more customers, so then I order less, and less frequently from you. We have already given the money and details to the person for Western Union. They sent the balance for the Alpraz and Diaz. I am waiting for the MTCN details from them, to forward on to you. Now please don't delay any further... I need....
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....the address of his company mentioning that they are Aurangabad based manufacturer in Ketamine hcl, Fluticasone, propionate, epirubicin hcl. (x) At page 193, there e-mail from [email protected] to one maximilian. [email protected] wherein cell no. '+91-9979386867' was given to call in case any queries. Similarly, the cell no. was given on various other mails, as available in the above said file. (B) File No.1 (i)At page no. 7, there is an e-mail from Shri Sanjaybhai to "[email protected]" on 08.01.09 wherein he had intimated that the pending balance for the "K" was $ 5625 I.e. equivalent to GBP 3,748 (UK Pounds). He further Intimated that he had been paid for 500 grams i.e. $1875 and he had shipped them the material for 2000 grams thus in US$ it would be $5625 as pending balance on converting to UK GBP It will be 3,748 out of which 2000 has been pald by [email protected]. He further Intimated that he is just sending the said details for reference. (ii) At page no. 57, there Is an e-mall from Shri Sanjaybhai to "[email protected]" on 26.01.09 wherein he had intimated the names l.e. "Yatin Sangol" & "Ladulal Bordia" for transfer of funds ....
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....he customers once it starts tracking, bcos there are whole lot of things involved in this business and it would be difficult for us to make u understand about it. With best regards," (vi) In the e-mail correspondence available at page no. 126, Raghunaath Agencies wrote [email protected], on 04.03.2009 as under: "Hello !!!!... The K has been already shipped last week and we are expecting the connecting numbers at any moment as soon as we have it we shall forward u the numbers. The delay is bcos there are strict chks at the moments in the UK customs. With best regards." 88. The Cellular Company had provided the call details of the mobile number which was used by Sanjay, as admitted by him in the statement dated 26.06.2009, for communication with the foreign customers. The scrutiny of frequent calls made from this number revealed that frequent calls were also made to Rajesh Joshi, Aurangabad who was the supplier of Ketamine. 89. Kishor Yadav, the employee of Sanjaybhai and his brother Kishan who had evaded the summons and chose not to appear before the authorities was recorded under Section 108 of the Customs Act wherein he has stated as under: "On 06....
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....tement dated 09.05.2009, various places were visited on 9.5.2009 along with the independent witnesses and Kishore Yadav, and recovery of Diazepam, Lorezpam, Viagra tablets etc. were made from two places as shown by Kishore Yadav under panchnama dated 9.5.2009. 91. In view of the statement of Jayesh Vadaliya that the transport was being made through the Purohit Courier, the investigation was extended to the said firm. The statement of Manager of Purohit Courier was recorded on 17.08.2009 and 18.08.2009 respectively, wherein he has stated as under : "On being asked as to how many parcels were brought by a person named as Shri Jayesh Vadaliya during the period from 2007 to March 2009, he stated that he had joined the courier company in April 2008 and after that they have prepared the duplicate copies of Memo of their company dated 08.05.2008, 15.07.2008, 08.02.2009 and 19.02.2009, under which parcels were delivered to M/s Pacific Express Corporation, Mumbai. The copies of the said memos were produced by him under his above statement. He further stated that parcels mentioned in the said Memos were delivered from their branch at Navasari to their Mumbai Office and from there....
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.... and the same was correct; as stated in his earlier statement, he furnished copy of the AWB No.40940 dated 20.5.2008 of Continental India Courier Service and the said AWB pertained to the referred consignment received by him on 8.5.2008 from M/s. Purohit Courier & Cargo Service, Navsari; the consignment weighing 5 kgs. pertained to Shri Sanjaybhal M. Gadhesariya; he also submitted a photo copy of Invoice No.NCC001-08 dated 7.5.2008 of M/s. Venus Speciality Chemicals, 1-15/28, A-Gora Gandhi Building, Gora Gandhi co-op. Housing Society, Opp: Lower Parel Station, Lower Parel (East),Mumbal 400013 (Tel.2305 1740, Fax: 23051749); sald Invoice No. NCC001-08 dated 07.05.2008 was attached with the parcel when it came from Navsari and based on the consignee address mentioned on the invoice and the said package, he instructed Mr. Mano vale to forward the same to the given consignee le. Nelleys Chemical Corporation, 539 East, 23 Street, 1" Floor, Brooklyn, New York 11210 USA; the product name shown on the said invoice dated 7.5.2008 was 'Sulfamic Acid': (Synonyms mentioned on the invoice were Amidosulphonic Acid, Sulphamic Acid); The said consignment was exported to USA vide A....
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....hese two consignments but it is the normal rate of about Rs. 500 per kg. for Europe Sector; that the AWBs Nosfor the two parcels under reference is 00146510/23-02-2009 and 00145112/11.2.2009;" 94. The statement of Vijaybhai of Rajkot was recorded on 27.06.2009 under Section 67 of NDPS Act, 1985, wherein he has stated that, 'he knew Sanjay Gadhesariya'. Around a year and half ago Sanjay Gadhesariya had informed him over telephone that some money is to come to Rajkot through the Western Union Bank and he was to collect the said money from M/s Prabho Tours & Forex Pvt Ltd., Rajkot'. Further, from the retrieved emails which were operated by Sanjay, the MTCN intimated by the foreign customers to Sanjay for collecting payment were found. The monies which were transferred by the foreign customers vide the said MTCN were received by Vijay Pandhi on behalf of Sanjay Gadhesariya. 95. The veracity of the facts admitted in the statements dated 21.4.2009, 29.4.2009, 24.6.2009 and 27.6.2009 respectively by Sanjay also find support from the statements of others/accomplices and the evidence which were found pursuant thereto, during the investigation. Although the said statements later came t....
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.... Section 138C of the Act is issued. Mr.Trivedi pointed out that Section 138C of the Act 1962 is pari materia to Section 65B of the Evidence Act. Section 138C reads thus : "138-C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.- (1) Notwithstanding anything contained in any other law for the time being in force,- (a) a micro film of a document or (the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of....
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....aining the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being sto....
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....ank attested genuine invoices but Shri Sumit Chawla did not make same available. On the other hand, in his statement dated 19.01.2016, that the prices indicated in the invoices/commercial invoices could be taken for assessment of all past imports as the rate of product did not change much during period of imports. We are of the view that there is no infirmity on the part of the adjudicating authority in re-determining the value of the past imported goods on the basis of such invoices. In the peculiar facts and circumstances of the present case, there is no need for the Revenue to collect evidence in the form of contemporaneous imports." 101. The aforesaid order passed by the Tribunal was challenged before the High Court of Delhi. The Delhi High Court dismissed the appeal vide order dated 6th August 2019. The order passed by the Delhi High Court was further challenged by the assessee before the Supreme Court. The Supreme Court dismissed the SLP [Laxmi Enterprises vs. Commissioner of Customs - 2020 (372) E.L.T. A33 (S.C.)], observing as under : "There is an inordinate delay of 623 days in filing this appeal and moreover we are not inclined to interfere with the impugned o....