Judgment:
Aftab H. Saikia, J.
1. Heard Mr. R.L. Yadav and Miss S. Kejriwal, learned Counsel for the petitioner as well as Mr. D. Baruah, learned C.G.C.
2. At the time of acceptance of this reference, this Court, after hearing the learned Counsel for the parties and upon consideration of the materials available on record, the following question of law under Section 130A of the Custom Act, 1962 (for short, 'the Act') being the law in force prior to its repealment by the National Tax Tribunal Act, 2005 with effect from 28.12.2005, was formulated.
Whether storing of Phensedyl Cough Syrup in the godown of the transporter namely M/S. Dooars Transport Ltd. Near the Bangladesh Border in itself will lead to the irrefutable conclusion that the cough syrup was meant for smuggling to Bangladesh without any supporting primary facts?
3. Before answering the abovementioned question of law, it would be appropriate and apt to notice the factual matrix of the case in brief.
4. The petitioner herein, M/S. Zenith Drugs & Allied Agencies (P) Ltd. was a clearing and forwarding (for short 'C & F') agent of M/S. Rhone Poulance (India) Ltd. Mumbai (for short 'the Principal'). The function of the petitioner was to receive the goods dispatched by the Principal from Mumbai and on receipt despatch the same to the buyer as per advice and direction of the Principal in invoice issued on behalf of the Principal.
5. In the instant case, a consignment of Phensedyl Linqtus (medicine) dispatched by the Principal through their transporter one M/s. Dooars Transport Ltd., Bombay to the petitioner, was not delivered to the petitioner. Subsequently, the said consignment, it was found illegally, as alleged, stored in a godown at Agartala bordering the Bangladesh, a foreign country. The case of the petitioner is that the consignment was taken to Agartala under forged and manipulated documents and invoices allegedly to have been handed over to someone at Agartala by one of their employees.
6. After having come to know about such illegal transportation of the said consignment to the Agartala, the Principal, was informed by the petitioner and the Principal in turn issued 'Stop delivery' instructions vide communication dated 30.12.2000. Despite such 'Stop Delivery Instructions', the entire consignment ofPhensedyl Linqtus (Medicine) was stored in the godown in question by certain alleged manipulation between the petitioner and one Firm at Agartala namely M/s. Tripura Firm.
7. Nonetheless, the entire consignment was confiscated by the Custom Authority on 14.3.2001 and seized the same.
8. It was alleged by the Custom Authority that the petitioner had made an attempt to smuggle the entire consignment to Bangladesh and to succeed in their such illegal activities of smuggling, the petitioner intentionally stored the said consignment by way of clandestine devise with the person concerned at Agartala at a proximate distance of 2/3 k.m, from the border of Bangladesh, a foreign country.
9. The matter was taken up by the Commissioner of Custom, Shillong and by his order dated 31.1.2002 after hearing the parties and taking into consideration of the entire matter, ordered absolute confiscation of the goods in question under Section 113(b) of the Act. He was also pleased to impose a penalty of Rs. 30,000/- each to all the 4 authorities including the petitioner.
10. Being aggrieved by the said order all the 4 appellants including the petitioner herein approached the Appellate Authority namely, the Custom Excise and Gold (Control) Appellate Tribunal, East Regional Bench 169, A.J.C. Bose Road, Culcutta-14 (for short, 'the Tribunal').
11 The Tribunal, having considered the factual premises and upon hearing the arguments so advanced by the counsel representing the parties upheld the finding of the imposition of fine against the petitioner while exonerating its Managing Director namely Mr. U.K. Paul who was also individually imposed with the fine of Rs. 30,000/- as already indicated above.
12. Dissatisfied with the imposition of fine against the petitioner by the Tribunal, the petitioner moved this Court under Section 130 A of the Act on 21.3.2003 prior to repealment of the said provision of law in 2005 as already mentioned above and this Court, as has been already recorded herein the above, formulated question of law.
13. Mr. Yadav, learned Counsel for the petitioner has strenuously argued that there was no evidence on record explicitly and candidly manifest before the Custom Authority to prove that the Phensedyl in question stored in the godown of the concerned transporter was ever meant for smuggling to Bangladesh. To bring home this sole submission, the learned Counsel for the petitioner has relied upon a decision of a Division Bench of Orissa High Court reported in : 1989(39)ELT183(Ori) (Ramkrishna Aggarwal v. Collector of Central Excise & Customs, Orissa) wherein paragraph-7 it was held that onus was on the Department to prove that the specified goods were intended to be transported into a specified area and thus there was violation of the statutory provisions of Sections 11K and 113A of the Customs Act and accordingly, observed that the distinction needed to be drawn between 'preparation' and 'attempt'. Preparation for committing an offence was always different from attempt to commit it. The preparation consisted in devising or arranging the means or measures necessary for the commission of offence. On the other hand an attempt to commit the offence was a direct movement towards the commission after preparations were made. In order that a person might be convicted of an offence to commit a crime, he must be shown first to have had an intention to commit the offence and secondly, to have done an act which constituted the 'actus reus' of a criminal attempt.
14. On the other hand, Mr. Baruah, learned C.G.C has submitted that it is on the record that there was a clandestine movement of the said consignment from Guwahati to Agartala at the behest of the petitioner and such illegal action on the part of the petitioner would go to show that he had made an attempt to smuggle the contraband goods. Moreso, it is also on record that the said goods were stored at Agartala nearing border of Bangladesh and the storing of such goods nearing the border of Bangladesh, shall give the clear signal that an attempt had been made to smuggle the goods to Bangladesh. However, he has admitted that the said goods were confiscated from the godown itself.
15. Having given our thoughtful consideration to the submissions so advanced by the learned Counsel for the parties and also on scruplous scanning of the materials made available on record, it is seen that no documents or action has been placed on record to show that the petitioner was found in making an attempt to smuggle the said contraband goods to Bangladesh. Moreso, it is admitted that the goods were confiscated and seized from the godown itself.
16. Applying the ratio of Ramkrishna Aggarwal's case (supra) it is found in this case that the Department failed to prove their burden to the effect that contraband goods were intended to be transported into Bangladesh for smuggling.
17. In the present case, in our considered view that 'Actus reus' (guilty act) cannot be attributed to the petitioner because we find that both preparation and attempt for smuggling the goods to Bangladesh were found absent. Nothing on record to show that a preparation for committing an offence of such nature has been made by the petitioner and resultantly an attempt to commit the offence by way of direct movement of the goods after preparation was made by the petitioner.
18. Under such factual premises, we have no hesitation to hold that no attempt had been made to smuggling the goods which were stored in the godown and accordingly, it is held that storing of the Phensedyl in question in the godown itself cannot lead to irrefutable conclusion that the said consignment was meant for smuggling to Bangladesh.
19. The question of law for formulated herein above is answered accordingly.
This Reference stands closed.
Send down the records along with a copy of this order to the Tribunal forthwith.