2014 (10) TMI 592 - AT - Customs

Detention of goods - consignment consisting 30 bags of betel nuts - Goods appeared to be of foreign origin - validity of trade opinion - Imposition of penalty - Held that - Goods were detained in this case on 25.09.2005, but Shri Gopinath Chaurasia, Prop. of M/s.Arti Enterprises and the consignee of the said goods submitted photocopy of the few bills after a period of about four months i.e. on 23.09.2005. He submitted that the payment in this case was made on 14.01.2006 i.e. much after the seizure. No purchase documents has also been produced in this case and therefore it is clear that the subsequent bills and the proof of payment furnished were only the after-thought. trade opinion may not be an expert opinion, but opinion based on long experience in the trade considering significant difference in the items of Indian origin and foreign origin may be of persuasive value and may not be thrown out only on the ground that trade opinion is not an expert opinion. If there are significant differences in shape, size, test etc. of betel nuts of Indian origin than the betel nuts of foreign origin the person in trade may form an opinion that it is of foreign origin which in the facts of the case may be accepted. It is evident from trade opinion that the recovered betel nuts on the basis of their shape, size and appearance appeared to be of foreign origin. - Decided against assessee.

Summary

Issues:
Appeal against order of Ld. Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.

Detailed Analysis:

Issue 1: Contradictions in recording facts and origin of goods
The Appellant argued that there were contradictions in the case facts. While the show cause notice mentioned markings on gunny bags as 'produce of Indonesia' and 'in transit to Nepal,' the seizure Panchnama did not reflect this information. Additionally, the Appellant presented documents indicating legal purchase of betel nuts from Darang District Regulated Market Committee, suggesting the goods were not smuggled. The Appellant highlighted previous cases where similar allegations were dropped, emphasizing lack of testing and trade opinion as conclusive evidence. Reference was made to a judgment by the Hon'ble High Court of Patna for supporting arguments.

Issue 2: Origin of betel nuts and evidence of foreign origin
The Revenue contended that betel nuts of foreign and Indian origin differ in size and shape, asserting that the seized betel nuts were of foreign origin based on physical characteristics. Despite attempts to contact the consignor, no valid purchase documents were produced, and the gunny bags bore foreign markings. The Revenue argued against the necessity of chemical testing due to inconclusive results in previous cases and emphasized the absence of proof of legal purchase in India.

Issue 3: Evaluation of evidence and final decision
After considering both arguments, the judge noted the delayed submission of purchase documents and payment proof, indicating an afterthought. Lack of purchase documents in India, incomplete address details in submitted bills, and trade opinion supporting foreign origin led to the rejection of the Appeals. The judge referenced the Hon'ble High Court's observation on trade opinion's persuasive value based on experience in the trade, accepting the trade opinion that the betel nuts were of foreign origin due to significant differences in appearance. Consequently, the judge found no merit in the Appeals and upheld the decision of the Ld. Commissioner(Appeals).

This detailed analysis covers the contradictions in facts, evaluation of evidence regarding the origin of goods, and the final decision based on the presented arguments and legal precedents.