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TMI Blog2000 (11) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 230 bags of Betel Nuts were found in one truck and 220 bags of Betel Nuts were found in the second truck. Trade opinion was taken from two firms of Varanasi in respect of Betel Nuts carried by Truck No. MP-20-G-5519, which was to the effect that Betel Nuts in question were of Burmese Origin. As per the appellants, no trade opinion was taken in respect of the Betel Nuts carried in the other truck. Statements of the driver and the khalasi of the trucks in question were recorded, which were to the effect that as per their knowledge, Betel Nuts were smuggled. Thereafter, on release, the driver retracted the statement by way of an affidavit before the Assistant Commissioner of Customs, Varanasi. 2.2. The appellants produced the requisite d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of foreign origin and smuggled nature of the goods, the Revenue has relied upon the statements of the drivers of the trucks, trade opinion etc. He also submitted that the drivers statements were only to the effect that as per their personal knowledge, the Betel Nuts in question were smuggled. This cannot take the place of evidence, being in the nature of hearsay deposition. 4.1. As regards trade opinion, he submitted that the Tribunal in a number of cases has held that opinion of shopkeepers cannot be considered to be expert s opinion so as to rely upon the same. It had also been contended that the Betel Nuts are non-notified items under the provisions of Section 123 and as such the onus is upon the Revenue to establish beyond doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that the betel nuts are grown in the North-East India. As such we fully agree with the submissions made by the ld. Advocate that the goods being of Indian origin and there being nothing on record to show their foreign origin, the confiscation of the same was bad in law. 8. We also note that the goods are not notified items under Section 123 of the Customs Act and as such the burden to prove that the same were smuggled lies heavily upon the department. In the instant case the Commissioner has only referred to the circumstances like absence of the driver at the time of interception of the truck and the opinion of the traders in respect of his findings of the goods having been smuggled from Nepal. Apart from the above, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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