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TMI Blog2015 (11) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Nepal origin and are smuggled into India. - there are no markings of foreign origin on the bags of the betel nuts. The information received by department and the statements of occupants of vehicles carrying betel nuts is only hearsay evidences and are not corroborated by any other positive evidence. In the absence of any positive evidence regarding foreign origin of betel nuts in these appeals, it cannot be held that the same are of smuggled nature. Claimant has made out a case for ownership of the 500 bags seized and also there is no other claimant for these goods. Order passed by the adjudicating authority, regarding confiscation of the 500 bags of betel nuts, is required to be set aside for handing over to the claimant of the same. As on merit the confiscation of betel nuts has been set aside penalties imposed upon the appellants in the present appeals are also set aside. - Decided in favour of appellant. - Customs Appeal Nos. :C/573,574, 578 & 579/2009 - Order No : FO/A/75605-75608/15 - Dated:- 9-10-2015 - Shri H.K. Thakur, Technical Member For the Petitioner : Sri Arijit Chakraborty, Advocate For the Respondent :L Sri S.P. Pal, Appraiser (A.R.) ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Nepal and were loaded at Naxalbari.Learned Advocate strongly argued that none of the nine occupants of the vehicles confirmed that they have seen the tractors/tempos coming from Nepal or that they themselves have gone to Nepal to bring the Betel Nuts. It was also his case that trucks were actually moving from Dhupguri to Kolkata and not from Naxalbari to Dhupguri and that Raninagar, where trucks were intercepted, wil have to be touched if one moves from Naxalbari to Dhupguri or from Dhupguri to Kolkata. That even if movement from Naxalbari to Dhupguri is presumed to be correct then also it is a movement of betel nuts within the territory of India and betel nuts is not a commodity notified under Section 123 of the Customs Act, 1962 and that Customs have not discharged their onus that betel nuts are of foreign origin and smuggled into India. 2.1 Learned Advocate further argued that his client Nirmal Baid , through a letter received by investigation on 2/1/2008, claimed ownership of 500 bags out of the total seized Betel Nuts, through his representative Shri Navratan Jain, with respect to vehicle Nos. WB-73/2544, AS-01/AC 6672 DLI GB 2226 and sought provisional release. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y/personal presumption and cannot be treated as a valid evidence. 2.2 Learned Advocate relied upon the following case laws to argue that betel nuts seized cannot be considered as of foreign origin and department has failed to discharge the onus that the same were of smuggled nature: i) CC (P), WB., Calcutta Vs. Dugarmal Mohata [2006 (200) ELT 522 (Cal)] ii) CC (P), W.B., Calcutta Vs. Raj Kumar Jaiswal [(204) ELT 561 (Cal)] iii) CC (Preventive) Vs. Mahendra Singh Purohit [2008 (225) ELT 426 (Bom)] iv) CC (Preventive), Mumbai Vs. Aakash Enterprises [2006 (205) ELT 23 (Bom)] v) CC (Preventive), Mumbai Vs. Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom)] vi) Lakhi Nath Rai Vs. Commr. Of Customs, Patna [2003 (159) ELT 662 (Tri-Kol)] vii) Laxmi Narayan Sharma Vs. Commr. Of Customs, Patna [2002 (142) ELT 74 (Tri-Kol)] viii) Raj Kumar Keshari Vs. CC (P) , Calcutta [2001 (136) ELT 745 (Tri-Kol)] ix) Kukil Das Vs. Commr. Of Customs, Patna [2004 (177) ELT 345 (Tri.-Kol) x) Commr. Of Customs, Patna Vs. Dwarika Prasad Agarwal [2012 (275) ELT 183 (Pat) xi) CC (P), W.B., Kolkat Vs. Sudhir Saha [2004 (172) ELT 26 (Cal) xii) Sonali Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of third country are brought into India across unauthorised routes through Mechi River belt through head loaders during day time. However,this fact is in contradiction to the statements of the occupants of the vehicles where it is stated that the betel nuts were brought in night through tractors/tempos. Hon'ble High Court of Calcutta in the case of C.C. (Prev.), Calcutta Vs. Dungermal Mohata [2006 (200) ELT 522 (Cal)], relied upon by the appellant, held as follows in para 25 26 of the this order: 25.After considering the entire facts and circumstances we are of the view that in the instant case the trade opinion cannot form the basis or foundation to establish the fact that, the seized betel nuts were either of smuggled nature or were of foreign origin and smuggled into India particularly in Dhupguri of Jalpaiguri from Nepal. Before the Commissioner of Customs the respondent before us wanted to cross-examine the alleged trade experts namely, Ashok Sana, Bhabesh Ghosh, Nepal Ghosh and Gopal Sana. It appears from the order of the Commissioner of Customs (Preventive) that letters were sent to the said four persons whose statements were recorded under Section 108 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entory such markings were not there on some bags of betel nuts. The trucks were intercepted at 03.00 hours of 14.7.99, whereas the seizure memo was prepared at 11.00 hours of 15-7-99. 5.2From the above factual matrix even accepted by Calcutta High Court, there is force in the argument of the appellant that betel nuts are purchased by the claimant from other betel nut traders of Dhupguri from and weekly hats organised in the areas in West Bengal, Assam etc. 6. Hon'ble High Court of Calcutta in the case of C.C. (Prev.), Kolkata Vs. Sudhir Saha [2004 (172) ELT 26 (Cal)] also held that betel nuts are not notified goods under Section 123 of the Customs Act, 1962 and burden of proof cannot be shifted to the person from whom the goods are seized . In the case of Krishna Das Vs. C.C., Lucknow [2014 (303) ELT 548 (Tri-Del)] CESTAT also held as follows in para 8,9 10: 8. Apart from the fact that there is no evidence on record to show that the foreign origin of the goods, I also note that the betel nuts are neither notified under Chapter IV of the Customs Act nor under Section 123 of the Act. As such, the onus to prove that the same have been smuggled lies very heavily upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscate the betel nut in question or to impose penalties on the appellants. Accordingly, the impugned order are set aside and all the appeals are allowed with consequential relief to the appellants. 7. In the present case also there are no markings of foreign origin on the bags of the betel nuts. The information received by department and the statements of occupants of vehicles carrying betel nuts is only hearsay evidences and are not corroborated by any other positive evidence. In view of the above observations and settled position according to relied upon case laws Revenue has failed to establish that seized betel nuts claimed by Shri Nirmal Baid are of foreign origin and of smuggled nature. On the other hand claimant has furnished ample evidences of his identity in the form of his VAT registration, purchase bills, filing of VAT returns by the buyer of seized goods M/s. Maa Shakti Co., Kolkata which were easily verifiable.Cross examination of the postal authorities asked by the claimant was also not extended when some of the letters sent by the investigation were received by the appellant at the same declared address. 8. In the absence of any positive evidence regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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