T.P. Nambiar, Member (J)

1. These are three appeals filed by the above-captioned appellants against the orders passed by the learned Additional Collector of Customs and Central Excise, Shillong in Order No. Cal/Cus/1/84 dated 25th January, 1984, by which order he imposed penalties of Rs. 2,000.00 each on the appellants - Md. Babar Ali and Md. Nurul Islam and appropriated Rs. 400.00 security deposit given by appellant, Md. Tarifulla Seikh, for the release of boat.

2. The brief facts of the case are that on 28-5-1983 acting on an information the Patrol Party of B.S.F. Dhubri went to a place in between Mullarchar and Reserverchar near Bangladesh border. At about 01.30 hrs (night), they noticed a loaded country boat on River Brahmaputra coming from Dhubri side and proceeding towards Bangladesh Border. The Patrol Party intercepted the loaded boat at a place in between Mollarchar and Reserverchar on River Brahmaputra and found 12 gunny bags containing cotton yarn (listed in Annexure). The Patrol Party brought the loaded boat along with the boatmen at Dhubri. Subsequently, they handed over the goods and boat along with boatmen to the Customs Officers of Dhubri for taking action under Customs Act. On demand, the owner of the boat, Md. Tarifullah Sk. and other two boatmen could not produce any cash memo or any valid documents relating to those cotton yarn.

3. On interrogation, Md. Tarifullah Sk. stated in his written statement dated 28-5-1983 that he is the owner of the boat and he generally carries goods and passengers in his boat in between Dhubri and Biraingchar village. On 27-5-1983 at about 20.00 hrs. a weaver of Phoolpur village came to him and asked whether he is agreeable to take 8/10 bags of cotton yarn from Dhubri to Purarvita. Having agreed to take the same on payment of Rs. 40/- the said weaver brought 12 gunny bags of cotton yarn by two hand pulled carts and loaded the same in his boat. It was also decided that the charges will be paid by the owner at Purarvita. He started at about 01.00 hrs (night) as soon as the boat left the ghat and reached near Tilakchandghat, the Patrol Party came by a speed boat and intercepted the loaded boat and brought the goods and boat along with him and other two boatmen. He also stated that the weaver whose goods were loaded in his boat is known by face but he does not know his name. Of course, it is known that the said weaver has a few weaving machines in his house. He further stated that the owner of the goods did not enquire of the goods till 18.00 hrs. of 28-5-1983. Md. Sukkur Ali Sk. and Asmat Ali Sk. stated that they are engaged by Md. Tarifullah Sk. on the bases of daily wages for plying the boat. They have not seen the owner of goods as they were not present at that time when the boat hiring charges were fixed between the owner of the boat and the owner of the goods.

4. Md. Babar Ali Mea stated in his written statement stated that he is the owner of the aforesaid goods. The Vice-President of his Samity Md. Nurul Islam purchased the cotton yarn from Calcutta and brought them by truck. On 27-5-1983 when the said truck reached Dhubri he (Babar Ali) brought down the cotton yarn from the truck and took them to Tilakchandghat, Dhubri by Thela and loaded them into the boat of Md.Tariful-lah Sk. in order to take them to Phoolpur. On 29-5-1983 after arriving at Purarvita he found that the said boat has not reached there. On coming back to Dhubri on 30-5-1983 he came to know that the said goods have been seized by B.S.F. and Customs. Then, he submitted an application to the Additional Collector, Cutoms & Central Excise, Shillong on 1-6-1983 claiming the release of the goods. Further he stated that the said cotton yarn was to be taken to Purarvita by boat and therefrom to Phoolpur by land for distribution to the weavers. He is the Secretary of Phoolpur Tant Silpa Samabyan Samity. He maintained the accounts of this establishment. He does not preserve the memo after entry. Generally they purchase cotton yarn from Dhubri and Golakganj and do not possess any other documents for bringing cotton of 40 counts as the cloth of this count only is generally sold in this area and only on this occasion they brought cotton yarn of 60 counts and 82 counts for experiment. Md. Nurul Islam stated in his written statement that he is the Vice-President of Phoolpur Tant Silpa SamabayaSamity. On 17-5-1983 he had purchased 120 bundles (240 half bundles) of cotton yarn from two shops in Calcutta at a total price of Rs. 24,982/- on behalf of Samity and on 24-5-1983 those cotton yarn were loaded in a truck bound for Gauhati from Calcutta and on 27-5-1983 he reached Dhubri by the said truck along with the goods. He had paid a sum of Rs. 200/- to the truck driver being the freight charges of the goods and the driver loaded the cotton yarn at Dhubri and left for Gauhati. Neither he sought nor the driver gave him the money receipt for Rs. 200/- against the freight charges paid to him. He cannot remember the No. of the said truck. He further stated that the cotton yarn they purchased are meant for use in the 11 Nos. of weaving machines of the Samity and for supply to the members of the Samity who have 30/35 machines. Later on, the cloth made by these weaving machines are deposited into the Samity and the weavers are paid their weaving charges.

5. Since Md. Tarifulla Sk. and his associates could not produce any legal document authorising them to export the seized goods from India to Bangladesh, the Customs Officers had reasons to believe that the said goods were attempted to be exported illegally in violation of Sections 7 (c) and 11 of Customs Act, 1962 read with Export Control Order No. 1/77 dated 24-3-1977 issued under Section 3 (1) of Import/Export (Control) Act, 1947. Hence, the seizure was made. A registered show cause notice was issued to Md. Babar Ali/Nurul Islam/Tarifullah Sk./Sukkur Ali Sk. and Asmat Ali Sk. under this office C. No. VIII (10) 15/Cus/83/40212-17(B) dt. 7-11-1983.

6. These appellants thereafter filed replies to show cause notice and the case was adjudicated after giving personal hearing to the appellants which resulted in the impugned order.

7. The learned Consultant, Shri P.C. Mukherjee contended that the learned Adjudicating Authority disbelieved the invoices produced with respect to the goods on the basis of an enquiry conducted which was behind the back of the appellant and it violated the principles of natural justice. He also contened that the statement of the Vice-President Phoolpur Tant Silpa Samabayee Samity dated 15-7-1983 that he purchased the cotton yarn seized for Rs. 24,982.00 was disbelieved on the ground that the firms in Calcutta did not support it on enquriy, and that enquiry report was not furnished to appellants. It was also contended that the statements of some prominent persons and an ex-member of the Samity, which was relied on by the adjudicating authority to hold that cotton yarns brought in the name of Samity were despatched to Bangladesh, were also not supplied to appellants. It was also contented that the statements of other persons which were relied on by the adjudicating authority were not furnished to the appellants. It was also contended that the learned Additional Collector traversed beyond the show cause notice and the order is thus illegal. He further pointed out that after the reply was furnished to the first show cause notice a second show cause notice was issued which is barred by the principles of Res Judicata and he relied on a decision reported in A.I.R. 1961 - Calcutta-145 (Jibon Saha v. S.tLChatterjee).

8. It was also contended that there was no reason to believe that the goods are being exported to Bangladesh and hence the seizure of the goods are illegal. It was also contended that the three boatsmen, Tarifulla, Sukkur Ali and Asmat Ali were found on the boat and show cause notices were issued to them, but charges against Sukkur Ali and Asmat Ali were dropped, which goes to show that there was no attempt to smuggle the goods to Bangladesh. It was also contended that the order is thus discriminatory. He also drew, my attention to the sketch-map produced and contended that the goods were to be taken to Purarvita and this village Purarvita is far away in the upstream from Dhubri Town in the river Brahmaputra and Bangladesh Border is in the down-stream far away from the place of interception of the boat, made by B.S.F. He contended that there is a difference between preparation and attempt and attempt begins where preparation ends. It was contended that after loading the subject cotton yarn they were waiting for favourable wind ta move in the up-stream by sail. It was also contended that if the boatmen have made any preparation for attempt to export, the B.S.F. could have intercepted at that time instead of waiting for the boat to move. It was also contended that the entire loading of the cotton yarn in the boat took place near the B.S.F. Camp and the villagers sitting near the ghat witnessed them and their statements were taken.

9. He also contended that the order is not a speaking order and when two boatmen were exonerated the other boatman, Tarifulla could not be found guilty. It was his contention that the order is not a speaking order and he relied on the following decisions in this regard:

(i) Seimens Engineering & Mfg. Co. Ltd. v. U.O.I. (reported in : AIR 1976 SC 1785 );

(ii) Mahindra & Mahindra Ltd. v. Union of India (reported in AIR 1979 SC 798 );

(iii) Woolcombers of India Ltd. v. Woolcombers Workers Ltd. (reported in : AIR 1973 SC 2758 ).

It is also contended that the B.S.F. having detected the offence should have mentioned their Border Pillar Number to strengthen the case of their detection. In this connection, he relied on the decision of the Tribunal in : 1986 (23) ELT 152. It was also contended that B.S.F took the statements of some witnesses later and those statements were not reflected in the show cause notice and appellants had no opportunity to meet those statements. It was also contended that in the show cause notice there were no materials disclosed to show that there was an attempt to export goods to Bangladesh. He also contended that the result of investigation made at subsequent stages before issue of show cause notices were not made known to the appellants and there is a clear violation of principles of natural justice on all these grounds. Therefore, he contended that the appeals may be allowed.

10. The learned Junior Departmental Representative, Shri P.C. Jain contended that the export was made at the dead of the night and it is clear that there was an attempt to export these goods to Bangladesh. He also contened that the circumstances that the boat was intercepted during the course of movement, in the dead of night, indicate the attempt to export them to Bangladesh. He also contended that although the goods were seized on 28-5-1983 the claimants did not claim the same till 10-7-1983 and about 1V2 months time was taken to create the invoices. It was contended that appellant Babar Ali Mea stated in his written statement that he is the owner of the aforesaid goods. He also contended that according to Babar Ali Mia the Vice-President of the Samity Md. Nurul Islam purchased the cotton yarn from Calcutta and brought them by truck and on 27-5-1983 when the truck reached Dhubri, he brought them and loaded it in the boat. But it was contended that on enquiry with Calcutta firms the transaction was found to be not genuine and therefore, the invoices are forged ones.

11. He also contened that the Textile Licensing Authority of Government of West Bengal confirmed the fact that the licence numbers mentioned at the top of each of the invoices of the firms, submitted by the parties are fake. It was also contended that the statement of some prominent persons and ex-member of the Samity revealed that huge quantities of cotton yarns brought to Phoolpur in the name of the Samity are ultimately despatched to Bangladesh on an opportune time. He also contended that the plea of appellants (that is the plea of Babar Ali and Nurul Islam) that these goods are brought to Phoolpur for distribution to Samity members is disproved by the fact that the biggest weaver and ex-jnember and prominent persons of Phoolpur have stated in writing that huge quantities of cotton yarn of higher counts brought to Phoolpur to Bangladesh. He, therefore, stated that the conclusions reached by the learned Adjudicating Authority are proper and legal and the appeals may be dismissed.

12. In view of the rival contentions the points that arise for my determination are:

(i) Whether the issue of a second show cause notice dated 16-12-1983 is illegal as contended by the appellants

(ii) Whether the impugned order suffers from infirmity on the grounds of violation of principles of natural justice

(iii) Whether the finding of the learned Additional Collector that the seized goods containing 239 bundles of cotton yam in 12 bags valued at Rs. 27,080.00 claimed by appellant Babar Ali were attempted to be exported to Bangladesh is legally correct and sustainable

(iv) To what relief the appellants are entitled to

13. As far as the first point is concerned it is seen from Annexure-R produced by the appellants along with the appeals that an addendum to the first show cause notice dated 7-11-1983 was issued by authorites. The relevant portion of the same reads as follows :

"Sub: Show Cause Notice dated 7-11-1983 Dated : 16-12-1983

In between the first and second para of page-4 of the above-quoted show cause notice following para should be inserted:

The boat is also liable to confiscation under Section 115 of the Customs Act, 1962.

Sd/- For Additional Collector of Customs."

It is clear from the above that only an addendum to the show cause notice was issued by adding a charge about the confiscability of the boat and there is no illegality in the same. It does not amount to a second show cause notice as contended by the learned Consultant. Hence as per point No.l I hold that there is no irregularity or illegality committed by the authorities below by issuing such an addendum.

14. As far as the second point is concerned the seized goods (cotton yarns) were claimed by the owner Babar Ali Mea, the appellant in Appeal No. CD(CAL)-87/84 through an application dated 1-6-1983 and had produced two invoices for having purchased the same from two firms at Calcutta. But the learned Additional Collector disbelieved those invoices on the ground that on enquiry it was found to be fake invoices. It was also stated in the order, that Textile Licensing Authority, Government of West Benegal also confirmed that the licence numbers mentioned at the top of these invoices of the said firms are fake ones. But the enquiry reports and the confirmation of the Textile Licensing Authority were not at all furnished to the appellant, Shri Mea and he had no opportunity to rebut the same. This has violated the principles of natural justice.

15. In coming to the conclusion that the seized goods were attempted to be imported illegally to Bangladesh the learned Additional Collector placed reliance on the statements of some prominent persons and an Ex-member of the Samity to the effect that huge quantities of cotton yarn of higher counts are brought to Phoolpur in the name of the Samity which are ultimately despatched to Bangladesh at the opportune time. But the-copies of such statements were not furnished to appellants. They were also not spelt out in the show cause notice. The order does not mention the names of those prominent persons or the Ex-member of that Samity. This also has violated the principles of natural justice.

16. Another reason furnished by the learned Additional Collector was that the B.S.F. Personnel and Customs seized the goods with evidence supported by the independent witnesses of area of actual detection. But the names of those independent witnesses were not stated in the order. The copies of their statements were not furnished to the appellants and no mention of it was made in the show cause notice. This has prejudiced the appellants as they had no sufficient opportunity to meet the above evidence relied on by the adjudicating authority. The learned Additional Collector further stated in his order that the labels of most of the bundles contained the words - "specially manufactured for export to Bangladesh". But there is no such material for him to come to that conclusion. Even in the show cause notice it was not stated that such a writing was found on those bundles. It was also mentioned in the order that two public witnesses had seen the boat moving and the interception of the same by the B.S.F. and that the three boatmen confessed that they were taking the goods to Bangladesh. But the names of those witnesses are not mentioned in the order and the appellants were not given the copies, of their statements. No such allegation was made in the show cause notice. It is thus clear that the learned Addl. Collector relied on several statements and facts, about which, no notice was given to the appellants to have their say in the matter.

17. Further, in page-7 of the Adjudication Order it was observed as follows :

"On 28-5-1983, when the BSF apprehended the boat loaded with the 12 bags of cotton yarn just before crossing over to Bangladesh at odd hours of night (0130 hrs), the Secretary and the Vice-President made every efforts to justify that they were meant for distribution to the members of the Samity. Their plea, however, has been contradicted by the biggest weaver and ex-member and some prominent persons of Phoolpur. They have stated in writing that huge quantities of cotton yarn of higher counts brought to Phoolpur in the name of the Samity are ultimately smuggled to Bangladesh at an opportune moment. The sudden advancing of loan of Rs. 21,500/- by only 5 members of the same family and the hasty entries of the particulars in the account book of the Samity, the delayed approach by the claimants to the seizing officer at Dhubri after seizure and despatching only a letter to the Addl. Collector without any supporting documents and the unconvincing defence put by them are taken into account and proper scrutiny before coming to my conclusion."

All those materials relied on by the learned Adjudicating Authority were not furnished to the appellants and no such allegations were made in the show cause notice. Hence reliance placed on this evidence which was not supplied to the appellants and which do not find a place in the show cause notice had violated the principles of natural justice and the impugned order suffers from this infirmity.

18. As far as point No. (iii) is concerned I have to find out whether the finding of the learned Additional Collector that the appellants attempted to export the seized goods to Bangladesh is legally correct. An attempt to commit a crime is an act done with intent to commit that crime and forming part of 3 series of acts, which would constitue its actual commission if it were not intercepted. The points at which the series of acts begins depend on the facts and circumstances prevailing in each individual case. The actus raus necessary to constitute an attempt is complete if the appellants do an act which a is step towards the commission of specific act of smuggling the goods to Bangladesh, which is immediately and not merely remotely connected with the commission of the act of smuggling them to Bangladesh. In order to constitute "an attempt" first there must be an intention to commit a particularoffence, second, some act must have been done which would necessarily have to be done towards the commission of the offence and third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit an offence, though the act by itself may be merely suggestive of such intention. Thus in order to justify the conclusion that appellants attempted to smuggle the goods to Bangladesh, the act of loading the goods and its movement in the water was sought to be connected with its movements towards Bangladesh only and not to Purarvita, in Indian territory, as contended by the appellants, by resorting to several materials and evidence which were not made available to the appellants as discussed by me earlier while discussing point No (ii). In such circumstances, the principles of natural justice are violated and the findings of the learned Adjudicating Authority are vitiated and the order is not sustainable in law.

19. Hence, I am of opinion that the impuged order is liable to be set aside. Accordingly, I set aside the impugned order passed by the learned Additional Collector of Customs and Central Excises, Shillong dated 25th January, 1984 and remand the case back to him for de novo adjudication with a direction to supply all the materials on which he proposes to rely, including several statements of the persons which were relied on in the order, and then to dispose of the case in accordance with law by observing the principles of natural justice and in the light of the observations made in this order. The three appeals are allowed, accordingly, only as far as these appellants are concerned.