2023 (5) TMI 1340 - AT - Customs

Smuggling - Import of cut betel nut from Nepal - Seizure of goods - confiscation - Contravention of the provisions of Notification No. 09/96-Cus - Onus to prove - HELD THAT - We find that it is an admitted fact that the item, betel nut is not a notified goods in terms of Section 123 of the Customs Act, 1962. Therefore, onus lies on the Revenue to prove that the goods in question are smuggled one. The revenue has not come up to any direct evidence to prove that the betel nut in question is a smuggled one, but tried to shift the onus on the respondent to prove that the goods are not smuggled one. The whole case has been hitched on the basis of statements of driver and khalasi. The goods might have come from Nepal, which are to send to Delhi. Nowhere, it is coming out of the impugned goods were imported for Nepal illegally. As Revenue has failed to prove with cogent evidence that the goods are smuggled one. Therefore, onus on the Revenue remains unfulfilled. Thus, we do not find any infirmity in the impugned order and the same is upheld. Accordingly, the appeal filed by the Revenue is dismissed.

Summary

Issues Involved:

1. Whether the seized goods (betel nuts) were smuggled from Nepal.
2. Whether the revenue has met the burden of proof to establish smuggling.
3. Whether the procedural requirements under the Customs Act, 1962 were followed.

Summary:

Issue 1: Whether the seized goods (betel nuts) were smuggled from Nepal.

The revenue initiated proceedings against several individuals alleging contravention of Notification No. 09/96-Cus dated 22.01.1996 issued u/s 11 of the Customs Act, 1962, read with Section 3(2) of the Foreign Trade (Development & Regulation) Act, 1992, and Section 7(c) of the Customs Act, 1962. It was alleged that 15,732 kg of cut betel nuts of third country origin were illegally imported from Nepal through unauthorized routes and seized along with the vehicle used for transportation.

Issue 2: Whether the revenue has met the burden of proof to establish smuggling.

The ld. Commissioner (Appeals) held that the revenue failed to prove that the seized goods were smuggled from Nepal. The tribunal noted that betel nut is not a notified item u/s 123 of the Customs Act, 1962, thus the onus lies on the revenue to prove the smuggling. The revenue did not provide direct evidence of smuggling but relied on statements from the driver and khalasi. The tribunal emphasized that the statements alone, without corroborative evidence, were insufficient to establish smuggling. The investigation did not extend to verifying the customs barrier of Nepal, and the driver and khalasi were not examined u/s 138(b) of the Customs Act, 1962.

Issue 3: Whether the procedural requirements under the Customs Act, 1962 were followed.

The tribunal found procedural lapses in the investigation process. The revenue's case was primarily based on the statements of the driver and khalasi, which were not substantiated by further investigation or evidence. The tribunal noted that the goods might have come from Nepal but there was no evidence proving illegal importation.

Conclusion:

The tribunal upheld the ld. Commissioner (Appeals) order, stating that the revenue failed to fulfill the burden of proof to establish that the goods were smuggled. The appeal filed by the revenue was dismissed. The operative part of the order was pronounced in the open court.