FAQIR ALAM, PRAMOD KUKREJA AND RAM Vs. CC

JUDGEMENT

(1.) IN these three appeals, the facts in brief are that on 5.11.98 the police officers got an information that truck No. MP -07 B/7064 which is loaded with potato was at Barhni Dihwa near Noman's Land and preparation is being done for exporting potato to Nepal. On receiving this information, the police officers reached at the spot and they found the truck there and labourers were opening patra of the truck. On seeing the police officers, they ran away towards Nepal and police could not chase them because of darkness. But they found the truck driver there and asked his name and address. He told his name as Ram Lal, resident of Civil Line, District Badaun. When he was asked for the documents for the goods, he stated that there is no document with him and he told the police officers that he was taking these goods from Badaun to Nepal. Police party accordingly detained these goods and arrested the driver. The truck along with the goods was handed over to the custom officers. The custom officers on 5.11.98 recorded the statement of Shri Ram Lal, driver of the vehicle No. MP -07 B/7064. He stated before the custom officers that his truck reached Barhni Dihwa at 4.00 A.M. in the morning. There the police party stopped the truck and asked him for the documents. He gave bilty for the potatos to the police and he stated about the goods loaded in truck. The truck was then taken by the police to the Barhni police station. There the police officers got his signatures on papers which were already written. He was not aware what was written in those papers. He could not dare to ask the police to read those papers before him and thereafter, he was taken by the custom officers. He stated that he was for the first time going to Shohratgarh with potato and bilty was with him showing where potatoes were to be delivered. The custom officers thereafter conducted the investigation. Show cause notice was issued to Shri Ram Lal driver and Shri Promod Kukreja, owner of the truck, Consignor of potato M/s. Nawada Alu Company, Badaun and consignee of the potato M/s. Ushullah and Company, Shohratgarh. It was alleged that the goods were being exported to Nepal in contravention of Section 11 and 7(c) of the Customs Act and were liable for confiscation under Section 113 of the Customs Act and concerned persons were liable for penalty and truck was liable for confiscation under Section 115 of the Customs Act. The case was adjudicated by the Joint Commissioner of Customs, Lucknow who held that as per notification No. 26 dated 27.10.98 issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with Export and Import Policy 1992 -97, potatoes are restricted for export and, accordingly, found these goods liable for confiscation as these goods were intended to be exported in contravention of Section 11 and 7(c) of the Customs Act. He also observed that nobody from M/s. Ushullah and Company, Sohratgarh approached to claim the ownership of the goods after the case was booked. He also found that M/s. Nawada Aloo Company, Badaun, Shri Promod Kumar, Shri Ram Lal, driver and M/s. Ushullah and Company are liable for penalty. Accordingly, he absolutely confiscated 90 Qtls. of potatoes. He confiscated truck No. MP 07B/7064 but allowed it to be redeemed on payment of redemption fine of Rs. 10,000/ -. He imposed penalty of Rs. 5,000/ - each on M/s. Nawada Aloo Co., Badaun and M/s. Ushullah and Company, Shohratgarh and penalty of Rs. 2,500/ - each on Shri Pramod Kukreja and Shri Ram Lal. Only three persons namely Ram Lal, Parmod Kukreja and Shri Faqir Alam of Nawada Aloo Company, Badaun challenged the order -in -original before the Commissioner (appeals) but the Commissioner (appeals) rejected their appeals.

(2.) IT was argued on behalf of the appellants that as per police Baramadgi Farad, only patra of the truck was being opened when the police party reached at Barhni Dihwa, (SIC) no -mans land where truck was standing with potatoes. No goods were being unloaded from the truck. The labourers who had opened patra, on seeing the police ran away towards Nepal for their safety. This itself shows that no attempt was being made to export the goods to Nepal. The documents for transportation of potatoes from Badaun to Sohratgarh were available with the driver. He has stated the same before the custom officers. The adjudicating authority as well as Commissioner (appeals) has given the findings that there was an intention to export potatoes to Nepal. Intention itself does not make the offence under the Customs Act. Only attempt to export is an offence under the Customs Act. When a person intends to export then he has to make preparation for the same and thereafter, attempt comes. In this case, even preparation has not been established. Therefore, the question of attempt does not arise. Accordingly, it was pleaded that no case has been made out against the appellants and the proceedings may be dropped. Reliance was also lplaced on the decision of the Tribunal in the case of Shri Ram Saran Mukesh Kumar and Ors. v. CC., Lucknow, decided in Final Order No. 2009 -2011/05 -SM(BR) dated 24.10.05 wherein under identical circumstances, the appeals were allowed.

(3.) ON behalf of the Revenue, it was argued that Farad Baramadgi shows that truck was standing near the no mans land at Barhni Dihwa and labourers were opening the patra of the truck to make unloading of the goods. The labourers also ran away towards Nepal when the police officers came there. It shows that they were attempting to export the goods to Nepal. It was also pleaded that consignee M/s. Ushullah and Company has not claimed the goods even after seizure even though the goods were consigned to them. Therefore, these should be taken as unclaimed goods. However, the learned Counsel for the appellants pleaded that the goods have been claimed by M/s. Nawada Aloo Company, Badaun, as these were transported under their documents and the ownership of the goods has not been passed on to M/s. Ushullah and Company as they have not received the goods and they will not make any payment for the goods and, therefore, they have not claimed the goods. He also pleaded that the existence of M/s. Ushullah and Company was held in doubt by the custom officers on the ground that the summons issued to them were returned undelivered. However, no attempt was made by the custom authority to find their existence from Krishi Utpadan Mandi Samity.