2019 (9) TMI 129 - AT - Customs

Smuggling - Betel Nuts - goods of Indian Origin or Indonesian origin? - section 108 of the Customs Act, 1962 - HELD THAT - The learned Commissioner(Appeals) in his impugned order has observed that betel nuts are not notified under section 123 of Customs Act, 1962 and therefore onus is on Revenue to prove that impugned goods were not properly imported into India. He has further held that no such evidence was produced by Revenue and therefore the said Order-in-Original dated 14.08.2018 was not sustainable - I note that to prove that the goods were of smuggled nature Revenue has relied upon statement of Shri Ram Prakash Kapoor in the grounds of appeal. On perusal of record, there is no evidence produced by Revenue to establish as to through which route the good were smuggled into India - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Stay of operation of Order-in-Appeal
2. Confiscation of betel nuts under Customs Act
3. Authenticity of certificate and origin of impugned goods
4. Statement of driver and foreign origin of betel nuts
5. Onus of proof on Revenue
6. Evidence of smuggling route into India

Stay of operation of Order-in-Appeal:
The Appellate Tribunal CESTAT ALLAHABAD heard a Misc. Application filed by Revenue for a stay of the operation of Order-in-Appeal No. 20-CUS/APPL/LKO/2019 dated 23.01.2019 passed by Commissioner(Appeals), Customs, GST & Central Excise, Lucknow. The Revenue argued that allowing the Order-in-Appeal to operate would result in a loss of Government revenue as it set aside the Order-in-Original confiscating 19,670 kg. of betel nuts under section 111(b) and (d) of the Customs Act, 1962.

Confiscation of betel nuts under Customs Act:
The Revenue contended that the impugned goods were confiscated under the Customs Act, and an option to redeem them on payment of a fine was provided. The grounds of appeal raised by Revenue included the authenticity of a certificate establishing the origin of the goods and the statement of a driver implicating the foreign origin of the betel nuts, alleging smuggling from the north-east border of India.

Authenticity of certificate and origin of impugned goods:
The Respondent's advocate argued that the driver's statement contradicted the Revenue's claims, stating that the goods were of Indian origin and had valid documentation. The driver denied loading foreign betel nuts and accused the customs authorities of wrongful seizure, asserting that the goods were of Indian origin.

Statement of driver and foreign origin of betel nuts:
The Revenue relied on the driver's statement as evidence of foreign origin, but the driver later disowned the statement, claiming the goods were of Indian origin. The Tribunal noted the lack of evidence from the Revenue to establish the smuggling route into India, leading to the rejection of the Revenue's appeal against the Order-in-Appeal.

Onus of proof on Revenue:
The Tribunal observed that betel nuts were not notified under section 123 of the Customs Act, placing the onus on the Revenue to prove improper importation. As the Revenue failed to provide evidence, the Order-in-Original was deemed unsustainable, and the impugned order-in-appeal was upheld.

Evidence of smuggling route into India:
After considering submissions and reviewing the record, the Tribunal found no evidence presented by the Revenue to establish the smuggling route into India. Consequently, the Tribunal upheld the impugned order-in-appeal and rejected the Revenue's appeal, along with dismissing the Miscellaneous Application as infructuous.