[Order]. - Being aggrieved by the orders passed by the learned Collector of Customs (Appeals) in Order No. Cal.-I Cex-167/87, dated 12-12-1987 the department has filed this appeal. The learned Deputy Collector confiscated the goods in question on the ground that they were attempted to be exported out of India to another country. The learned Collector (Appeals) reversed this decision. The present appeal is directed against that decision.

2. The learned JDR, Sri Choudhury, contended that these goods were found lying on the road. He also drew my attention to the observations of the learned Deputy Collector to the effect that the circumstances have to be analysed and viewed, in the context of generally what happens at the border. It was also stated in the order by the learned Deputy Collector that, it is a fact that such items are smuggled across the border, and in many cases the goods are just left on the roadside to be smuggled out of the country stealthily depending upon the opportunity. The Deputy Collector also observed that in such cases even if the goods have been purchased by the parties from Calcutta market as contended by them that itself does not demolish the attempt to smuggle in a given case. He, therefore, came to the conclusion that the goods were kept on the roadside to be smuggled out of the country contrary to the provisions of Section 113 of the Customs Act. These are only the observations made by the Deputy Collector in the order pinning the liability on the appellant and the learned JDR contended that these facts will establish that there was an attempt to export. He further highlighted the fact that, even though the seizure was made on 11-1-1985, the claim was made on 16-1-1985. It was therefore contended that the learned Collector (Appeals) was in error in allowing the appeal on the ground that the grounds taken by the Deputy Collector were not in accordance with law. He, therefore, contended that the appeal may be allowed. He further stated that the affidavit of Sri Mantu Kumar Haldar and the declaration of the Transport Company were furnished by the respondent only before the Collector (Appeals) in the year 1987, long after the adjudication, and, therefore, no credence could be given to the same. He relied on a decision of the Supreme Court reported in (S.C.) = 1988 (4) SCC 1 wherein it has been held that the affidavit filed after such a long delay should be disregarded in the circumstance of the case.

3. Replying to the above contentions, the learned Consultant, Sri K. Chatterjee appearing for the respondent, contended that the respondent had produced all the bills and vouchers for purchase of the goods in question. He also contended that the transport voucher from the transport company was also produced by the respondent, when he made the claim before the A.C. He also contended that when the goods were being transported in the lorry, these were forcibly taken out by the B.S.F. officers and he disputed the fact that those were found lying by the roadside. He also contended alternatively that the facts and circumstances of this case will not show that there was an attempt to export these goods out of India. In this connection he relied on the following decisions :

(a)     (Trib.) = 1986 (8) ECR 519 (CEGAT Mad.) - K. Babu Rao & Ors.

(b)     (Mad.) = 1985 ECR 1618 (Mad.) - M/s. Ranjit Exports (P) Ltd.

(c)      (Trib.) - B. K. Patel & Others.

(d)     (Ori.) - Ram Krishna Aggarwal.

(e)     (T) - M/s. Karnataka Trading Co.

4. I have heard both sides in details. The point that arises for my determination is whether there was an attempt to export the goods out of India. It is seen from the order of the learned Collector (Appeals) in internal page 6, that the evidence produced on behalf of this respondent was not controverted by any investigation made by the department which goes to show that the goods were purchased by the respondent from Calcutta on 8th and 9th January, 1985. So also the observations of the learned Deputy Collector is to the effect that the claim of the appellant that Roy Transport Company was engaged by them to take the goods were also established. But the learned JDR, Sri Choudhury, stated that there is no proof to show that what was purchased was taken in this truck and that is an argument made for the first time. Even the learned Deputy Collector in his order did not dispute the fact. The learned Deputy Collector merely stated in the order that no evidence has been produced on behalf of the respondent establishing that the goods were, in fact, taken out from the truck by BSF forcibly as alleged by the respondent. So what he disputes is that there is no evidence to show that the goods were taken forcibly from the truck. He does not dispute in the order that the goods were not actually taken in the truck. No investigation is made in this behalf to contradict the claim of the respondent. He had produced the necessary documents, and when such documents are produced by the respondent, some investigation should have been made to show that actually these goods were not taken in the truck. What is disputed in the order is that the respondent has not produced evidence to show that these goods were not shown to have been taken by force from the truck. It is no doubt true that the affidavit and the declaration produced at a later stage may not have much evidenciary value, as has been held by the Supreme Court in the above cited decision. But what has to be proved is that there was an attempt to export the goods in question to a third country. In this connection the decision reported in is on the point. It has been stated in that decision that a preparation to export does not amount to movement towards the commission of the offence, which is a necessary ingredient of the offence. It was stated that there must be an evidence to show that the goods in question was in the course of movement towards the border of the other country. In this case the learned Counsel has stated that the border is eight kilometres away from the place of seizure. There is nothing to show that these goods were moving towards the border. Even assuming that they were found by the side of the road at a distance of 8 k.m. away from the border, it cannot be said that there is an attempt to export the goods out of India. Even if the worst is taken against the respondent, it may amount to a preparation. In the decision cited in (Tribunal) = 1985 ECR 1618 the Madras High Court held that the essential ingredients of export denotes and connotes the taking out of India of the goods in question. It was stated in that decision that taking connotes a movement of the goods with intention to move the goods out of India. It was again stressed by the Lordship that the movement could as well be within the territory of India. But there should be movement of the goods. Otherwise, the very concept of taking out will have no meaning. In this case, admittedly, the goods were stationary. Even if the respondent has not established by submitting evidence that they were taken forcibly from the truck, by BSF officers, there is nothing to show that the goods were in movement. Suppose if the goods were found in movement pointing towards the border and there was no other explanation to be furnished by the respondent with respect to that movement, then a presumption may be drawn that the movement was towards the border. In this case that evidence is lacking. The learned Counsel placed reliance on a decision reported in (T) = 1986 (8) ECR 612. I do not find anything in support of the respondent’s case in that decision. He placed reliance on another decision reported in . The Hon’ble Orissa High Court held in that case that a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after the preparations are made. In this case if those principles are applied and even if it is taken for granted that the goods were kept by the roadside, there may be two views possible-one is a preparation to export the same outside India, and the second would be that the goods can be taken within the territory of India also. However, there is no movement towards the attempt to export the same outside India. It is clear from a decision of the Supreme Court which was relied on by the learned Consultant, which is quoted by this Tribunal in a decision reported in (Tribunal) = 1990 (27) ECR 148. In that case this Tribunal relied on the decision of the Supreme Court reported in Malkiat Singh v. State of Punjab - 1969 (2) SCR 663. It was held by the Supreme Court that 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. Applying the above test to this case, if it is assumed that the goods were found by the side of the road, it can only be said that the act already done is such that if the respondent changes his mind and does not proceed further in its progress, it would be completely harmless. Thus, taking into consideration all these aspects of the case, at best it can be said that it may amount to a preparation. There is a long gap in between preparation and attempt and that gap should be filled in before the respondent is found guilty of the above said offence. Such evidence is missing in this case and the learned Collector (Appeals) has already given the benefit to the respondent. I find no reason to interfere with the above orders and find no infirmity in the above said order. Accordingly, this appeal stands dismissed.