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TMI Blog2016 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... ign origin and are smuggled is squarely on Revenue and this onus cannot be discharged merely on the basis of suspicion - there is no evidence that seized goods claimed by the appellants were of foreign origin and smuggled into India. Also, appellants have produced documents indicating procurement of Betel Nuts. Any impropriety in the documentation for local movement of goods, under the local laws, cannot make the goods liable to confiscation under Section 111(b) of the Customs Act, 1962 – imposition of redemption fine, penalty and duty unjustified – appeal disposed off – decided in favor of appellant. - Appeal Nos. C/75661, 75662 & 75663/16 - Order No. FO/A/75877-75879/16 - Dated:- 18-8-2016 - Shri H.K.Thakur, Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified under Section 7(c) of the Customs Act, 1962. That all the three appellants submitted their claim within 15 days of the interception along with Form-K, Form-M and Railway receipts. Learned Advocate made the bench go through the documents, including cash receipt indicating cess paid on supari to Market Committee Tangla Centre. It is the case of the appellants that Adjudicating Authority has brushed aside the documents furnished only on the ground that appellant did not have any trade license, Sale/cash memo etc. indicating purchase of seized goods. That there is no evidence at all in the entire proceedings that seized betel nuts were of foreign origin. That there is no expert/trade opinion to the effect that seized goods are of for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere of foreign origin. For the purpose of seizure the reason to belief may be acceptable but such a hearsay evidence is not at all sufficient to order confiscation of goods. There is no evidence on record the seized betel nuts have come to India across international border. There is also no expert/trade opinion that the category /quality of seized betel nuts are not found in India. Betel nut is not a notified item under Section 123 of the Customs Act 1962 to cast the burden upon the appellants to establish their innocence. Once appellants have produced evidence to the extent of payment of cess on Assam supari to market committee and transported the same under a Railway receipt then it cannot be said that they were found wanting in not havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and has also claimed along with the evidence of cash memos that they had bought almost 46 tons of betel nuts under various cash memos (on payment including VAT) from two cooperative societies, which in turn had bought the goods from NCCF and the cooperative societies have mentioned the invoice numbers of NCCF under which the goods were bought by them (i.e., the cooperative societies). The adjudicating authority has essentially relied on the visual opinion of the Customs authorities that the goods are similar to the goods which are smuggled from Nepal and statements of the cooperative society and NCCF personnel given after visual examination of the impugned goods that they are not those sold by them. There is force in the appellants conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to foreign origin, Tribunal committed no illegality in setting aside order of confiscation and penalty. In the case of CC (Preventive), Mumbai v. Aakash Enterprises [2006 (205) E.L.T. 23 (Bom.)], the Bombay High Court observed that the Tribunal s finding that in cases of non-notified goods, burden lies on Revenue to prove illegal entry into country is correct and that the burden lay on the Department to produce some material/evidence to establish that seized goods were smuggled goods. Similarly, in the case of CC (Preventive), Mumbai v. Shri Ganesh Enterprises [2006 (199) E.L.T. 208 (Bom.)], the High Court reiterated that the burden lay on the Department to produce some material/evidence to establish that seized goods were smuggled goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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