2015 (11) TMI 551 - AT - Customs

Confiscation of goods - whether 500 bags of betel nuts seized from vehicle Nos. WB-73/2544, AS-011AC/6672 and DL/GB-2226 are of foreign origin and smuggled into India and whether Shri Nirmal Baid is the rightful claimant of these 500 bags - Held that - none of the occupants of the vehicle had the prior intimation that they have to go to the site for loading betel nuts of foreign origin. All of the occupants of the vehicles were contacted by a person, who later fled. None of the drivers and the khalasis of the vehicles ever stated that they have either transferred the seized betel nuts across the border from Nepal or have witnessed such transportation across the border. A perusal of the statements of these drivers/khalasis only convey that from the manner of loading betel nuts from tractors/tempos they thought that the same are of Nepal origin. There are no markings on the 500 bags that the same indicate bear any markings of Nepal origin. In view of the observations revenue has failed to establish that seized betel nuts are of Nepal origin and are smuggled into India. - there are no markings of foreign origin on the bags of the betel nuts. The information received by department and the statements of occupants of vehicles carrying betel nuts is only hearsay evidences and are not corroborated by any other positive evidence. In the absence of any positive evidence regarding foreign origin of betel nuts in these appeals, it cannot be held that the same are of smuggled nature. Claimant has made out a case for ownership of the 500 bags seized and also there is no other claimant for these goods. Order passed by the adjudicating authority, regarding confiscation of the 500 bags of betel nuts, is required to be set aside for handing over to the claimant of the same. As on merit the confiscation of betel nuts has been set aside penalties imposed upon the appellants in the present appeals are also set aside. - Decided in favour of appellant.

Issues Involved:
1. Confiscation of betel nuts under Section 111(b) & (d) of the Customs Act, 1962.
2. Imposition of penalties under Section 112(a) & (b) of the Customs Act, 1962.
3. Ownership claim of the seized betel nuts by the appellant.
4. Burden of proof regarding the foreign origin and smuggled nature of the betel nuts.
5. Admissibility and reliability of evidence provided by the Revenue and the appellant.

Detailed Analysis:

1. Confiscation of Betel Nuts:
The adjudicating authority confiscated 54,975 kgs (738 bags) of betel nuts valued at Rs. 27,48,750/- under Section 111(b) & (d) of the Customs Act, 1962. The confiscation was based on the presumption that the betel nuts were smuggled from Nepal. However, the Tribunal found that the Revenue failed to establish the foreign origin of the betel nuts. None of the vehicle occupants confirmed that the betel nuts were smuggled from Nepal, and there were no markings indicating their foreign origin. The Tribunal concluded that the confiscation was not justified due to the lack of concrete evidence.

2. Imposition of Penalties:
Penalties of Rs. 2.00 Lakhs each were imposed on Shri Nirmal Baid and Shri Navratan Jain, and Rs. 1 Lakh each on Shri Sanjib Kr. Deb and Shri S.N. Deb under Section 112(a) & (b) of the Customs Act, 1962. Since the confiscation of the betel nuts was set aside, the penalties imposed on the appellants were also set aside. The Tribunal emphasized that penalties could not be sustained without proof of the smuggled nature of the goods.

3. Ownership Claim by the Appellant:
Shri Nirmal Baid claimed ownership of 500 bags of the seized betel nuts through his representative Shri Navratan Jain. The claim was initially rejected because the summons sent to his address were marked 'Refused.' The Tribunal found that the appellant provided sufficient evidence of his existence at the given address, including VAT registration, purchase bills, and sales tax returns. The Tribunal ruled that the appellant was the rightful owner of the 500 bags of betel nuts.

4. Burden of Proof:
The Tribunal noted that betel nuts are not notified goods under Section 123 of the Customs Act, 1962, and the burden of proof to establish that the goods were of foreign origin and smuggled into India lay with the Revenue. The Tribunal referred to several case laws, including CC (P), WB., Calcutta Vs. Dugarmal Mohata [2006 (200) ELT 522 (Cal)], which held that trade opinions alone could not establish the smuggled nature of betel nuts. The Tribunal concluded that the Revenue failed to discharge its burden of proof.

5. Admissibility and Reliability of Evidence:
The Tribunal found that the evidence provided by the Revenue, including the statements of the vehicle occupants, was based on hearsay and lacked corroboration. The Tribunal also noted discrepancies in the statements regarding the mode of transportation of the betel nuts. The Tribunal emphasized that the evidence provided by the appellant, including VAT registration and sales tax returns, was credible and verifiable. The Tribunal ruled that the evidence provided by the Revenue was insufficient to establish the foreign origin and smuggled nature of the betel nuts.

Conclusion:
The Tribunal set aside the order of confiscation and penalties imposed by the adjudicating authority. The appeals filed by the appellants were allowed with consequential relief, and the 500 bags of betel nuts were ordered to be handed over to the rightful claimant, Shri Nirmal Baid. The Tribunal emphasized the importance of concrete evidence in establishing the smuggled nature of goods and upheld the appellant's ownership claim based on credible documentation.

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