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TMI Blog1999 (10) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... a Railway Station to Kanpur Central by one Shri Shyam Singh who was an employee of the appellant herein Shri Ram Nath Sah. The consignee shown in the railway document was self that is Shyam Singh. The said consignment was booked on 19-1-1996 and was intercepted by the Customs Officers and seized on 3-2-1996 on the ground that the betel-nuts in question were of foreign origin and were smuggled in nature. Shri Chatterjee submits that the seizure of the betel-nuts in question was itself bad in law inasmuch as the detention receipt does not show any source of power for seizing the goods inasmuch as the Section of the Customs Act under which the goods have been seized has not been mentioned neither the alleged country of origin of the betel-nuts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Valves Ltd. v. C.C. [1988 (37) E.L.T. 86 (Tribunal) = 1988 (17) ECR 700] that visual examination is not admissible as an expert opinion. He further submits that Shyam Singh made a representation to the Chief Commissioner of Customs, Kathiar on 2-2-1996 to the effect that after making inquiries from the Railways at Kanpur for getting the goods released, he has come to know about the detention of the same by the Customs Officer at Kathiar Railway Station. He made a prayer for release of the betel-nuts as the same were acquired/purchased by him in a genuine manner. Subsequently, Shyam Singh on 3-2-1996 again wrote to the Chief Commissioner, Kanpur saying that though RR was in his name, he was working as an employee of Ram Nath Sah who was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue, as regards the said receipts produced by the appellant. The same has been rejected in a casual manner. As regards the observations of the adjudicating authority, that the appellant cannot be considered to be the owner of the betel-nuts, Shri Chatterjee submits that no doubt the goods were booked by Shri Shyam Singh in his own name but he was acting as an employee of the appellant. This position has been made clear by Shri Shyam Singh in his affidavit and letter written to the Commissioner, Kanpur. As such the observation raised by the authorities below as regards the ownership of the goods is neither justified nor warranted. 4. As regards the smuggled nature of the betel-nuts in question, Shri Chatterjee submits that apart from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, he refers to the case of Gyan Chand Jain reported in 1986 (25) E.L.T. 163 (T). He submits that originally the goods were claimed by Shri Shyam Singh and it was only subsequently that Shri Ram Nath Sah was declared the owner of the goods by Shri Shyam Singh. This fact raises a strong doubt about actual owner of the goods in question. The story of Shyam Singh of leaving the job with the appellant immediately after the seizure also raised doubt about the genuineness of the consignee in question. As regards the foreign origin and smuggled nature of the betel-nuts in question, he submits that though there cannot be any markings of foreign origin on the betel-nuts, the same have been opined to be of foreign origin by a trader who is a Kira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural lapses need not be gone into at this stage. The points raised by him has also been duly replied by Shri Kennedy, learned JDR with the help of precedent decision. As such, I do not wish to go into such technicalities specially when I find that the legal points raised by Shri Chatterjee in respect of foreign origin of the betel-nuts and its smuggled nature are in favour of the appellant. 7. Firstly, the foreign origin of the betel-nuts has not been established beyond doubt by the Department. Shri Shyam Singh in his letter addressed to the Commissioner, Customs, Kanpur had disclosed that it was only after making enquiries with the Railways at Kanpur, he came to know about the detention of the seizure of the goods and in his first lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been dismissed by the adjudicating authority in a very flimsy manner by observing that the goods have been shown purchased at Darjeeling but booked from Galgalia . I have seen the receipts issued by the Gram Panchayet Upa-Pradhan, the same show addressed as Naxalbari, Distt. Darjeeling and not Darjeeling. In any case, the Department ought to have made an enquiry and to verify in respect of the genuineness of the said receipts instead of dismissing the same in a casual manner. On the contrary, I find that there is not even an iota of evidence on record produced by the Department to substantiate the charge of the smuggling. I agree with the learned JDR that it is not with mathematical precision that the Department is required to prove its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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