2006 (5) TMI 92 - HC - Customs

Seizure of trucks and bags of betel nuts - Smuggled character - Confiscation of goods - penalty - HELD THAT - After going through the order of the learned Tribunal we find no illegality in the said order. The learned Tribunal rightly came to the decision that the words Biratnagar Nepal Transit to Calcutta to Nepal were written subsequently and those writings was not there at the time of inventory and at the time of preparation of seizure memo. Moreover if the goods were imported from Nepal the writing Biratnagaf Nepal would not have been in Hindi as was found on some of the seized bags. The revenue in the present case failed to establish the smuggled character of the goods and failed to establish that the betel nuts were of foreign origin. The Tribunal rightly came to the decision that statement of trade opinion of local traders cannot prove foreign origin of the goods and in number of cases it was held that in cases involving betel nuts trade opinion cannot be equated with opinion of expert. We have earlier expressed our finding that in the instant matter the trade opinion cannot be relied upon as the four persons whose statements were recorded were not available for cross-examination before the Commissioner of Customs (Preventive) West Bengal. The learned Tribunal rightly held that the revenue has not been able to discharge the burden placed on them. Thus we find no merit in the application itself and there is no ground to interfere with the findings of the learned Tribunal. Hence we find that no question of law arises out of the order of the Tribunal. Accordingly there is no merit in the reference application and the application accordingly fails and is dismissed.

2004 (7) TMI 95 - HC

Issues Involved:
1. Determination of whether the seized betel nuts were of foreign origin and smuggled.
2. Evaluation of the circumstantial evidence and trade opinions regarding the origin of the betel nuts.
3. Assessment of the burden of proof for non-notified items under Section 123 of the Customs Act, 1962.
4. Validity of the statements recorded under Section 108 of the Customs Act.
5. Legitimacy of the Tribunal's decision to set aside the order of the Commissioner of Customs.

Detailed Analysis:

1. Determination of whether the seized betel nuts were of foreign origin and smuggled:
The case revolves around the seizure of betel nuts by the Customs Officers, who suspected them to be of foreign origin, specifically from Nepal. The officers intercepted two trucks carrying betel nuts and found some bags marked with "Biratnagar, Nepal, Transit to Calcutta to Nepal." The Customs Authorities argued that the seized betel nuts were of the 'Rotha Supari' variety, which is not grown in India but is abundant in Nepal. However, the respondent contended that the betel nuts were grown in India, particularly in the districts of Jalpaiguri and Coochbehar in West Bengal and the North Eastern Indian States.

2. Evaluation of the circumstantial evidence and trade opinions regarding the origin of the betel nuts:
The Customs Authorities relied heavily on the opinions of local traders and businessmen, who stated that the seized betel nuts were of a variety grown in Nepal. These opinions were recorded under Section 108 of the Customs Act. However, the court noted that the statements of these traders could not be the sole basis for determining the origin of the betel nuts. The court also highlighted that the addresses of these traders were not verified, and they were not available for cross-examination, raising doubts about the authenticity of their statements.

3. Assessment of the burden of proof for non-notified items under Section 123 of the Customs Act, 1962:
The court emphasized that betel nuts are non-notified items under Section 123 of the Customs Act, 1962. Therefore, the initial burden of proof lies on the Customs Authorities to establish that the seized betel nuts were smuggled. The court referred to a previous judgment (Commissioner of Customs (Preventive), West Bengal, Calcutta v. Sudhir Saha) which held that the burden of proof in cases involving non-notified items cannot be shifted to the owner or the person from whom the goods were seized. The Customs Authorities failed to provide concrete evidence to prove that the betel nuts were smuggled into India from Nepal.

4. Validity of the statements recorded under Section 108 of the Customs Act:
The court scrutinized the validity of the statements recorded under Section 108 of the Customs Act. It was found that the traders whose statements were recorded were not available for cross-examination, and the addresses provided were found to be incorrect. This raised serious doubts about the genuineness and reliability of these statements. The court concluded that such statements could not be regarded as voluntary and reliable, and hence, could not form the basis for proving the smuggled nature of the goods.

5. Legitimacy of the Tribunal's decision to set aside the order of the Commissioner of Customs:
The Tribunal had set aside the order of the Commissioner of Customs, stating that there was no justification for the confiscation of the betel nuts and the vehicles, as the revenue failed to discharge the burden of proof. The court upheld the Tribunal's decision, agreeing that the Customs Authorities did not provide sufficient evidence to prove that the seized betel nuts were of foreign origin and smuggled into India. The court also noted that the markings on the bags ("Biratnagar, Nepal, Transit to Calcutta to Nepal") could have been made subsequently by the Customs Officers, as these markings were not mentioned at the time of inventory preparation.

Conclusion:
The court dismissed the application filed by the Revenue, finding no merit in their arguments. The court concluded that the Customs Authorities failed to establish that the seized betel nuts were of foreign origin and smuggled into India. The Tribunal's decision to set aside the order of the Commissioner of Customs was upheld, and the application was dismissed with no order as to costs.

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