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TMI Blog2014 (10) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure. No purchase documents has also been produced in this case and therefore it is clear that the subsequent bills and the proof of payment furnished were only the after-thought. trade opinion may not be an expert opinion, but opinion based on long experience in the trade considering significant difference in the items of Indian origin and foreign origin may be of persuasive value and may not be thrown out only on the ground that trade opinion is not an expert opinion. If there are significant differences in shape, size, test etc. of betel nuts of Indian origin than the betel nuts of foreign origin the person in trade may form an opinion that it is of foreign origin which in the facts of the case may be accepted. It is evident from tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ₹ 2,30,000/- and imposing penalty of ₹ 10,000/- and ₹ 15,000/- on Shri Gopal Saha (Consignor) and Shri Gopinath Chaurasia (Consignee). On Appeal, the Ld. Commissioner(Appeals) remanded the case to the lower authority for fresh adjudication after examining the applicability of the test report of the seized goods and the reasons for goods detained on 25.09.2005, but seized on 26.10.2005. The case was therefore taken for de novo adjudication by the Joint Commissioner holding the same decision of his predecessor i.e. Additional Commissioner of Customs. Being aggrieved the Appellants filed Appeal to the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) upheld the de novo adjudication order. Being aggrieved these Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the onus lies on the Customs officer to prove that the same were smuggled goods. The Ld. Advocate submitted that merely the trade opinion is not a conclusive proof suggesting the foreign origin of the goods. In this regard he referred to the judgement for the Hon'ble High Court of Patna in the case of CC, Patna vs. Dwarika Prasad Agarwal - 2012 (275) ELT 183 (Pat.). 4. As per contra the Ld. A.R. for Revenue submitted that the betel nuts of foreign origin and Indian origin differ in shape and size. While as betel nuts of third country origin are bigger in shape and size, the betel nuts of Indian origin are conical and smaller. He submitted that on earlier occasions when the samples were sent for testing, a chemical report was furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete address of consignor as well as that of consignee. Further the trade opinion revealed the said goods to be foreign origin and the payment in respect of the said goods to the consignor Shri Gopal Saha was made much after the case was booked, etc. As regards the order of the Hon'ble High Court cited in the case of Dwarika Prasad Agarwal cited (supra), the Hon'ble Court under para 8 observed that trade opinion may not be an expert opinion, but opinion based on long experience in the trade considering significant difference in the items of Indian origin and foreign origin may be of persuasive value and may not be thrown out only on the ground that trade opinion is not an expert opinion. If there are significant differences in shape, size ..... X X X X Extracts X X X X X X X X Extracts X X X X
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