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TMI Blog2017 (7) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... inable and also for the reason that onus to prove that the goods were of smuggled nature has not been established by Revenue in the entire course of proceedings. Since the smuggled nature of the goods is not established, the confiscation of trucks and penalty on all the appellants under Section 112 of Customs Act, 1962 automatically needs to be set aside - appeal allowed - decided in favor of appellant. - C/50589-50599/2014-CU[DB] - C/A/70646-70656/2017-CU[DB] - Dated:- 11-7-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Santosh Misra (Advocate), Shri A.P. Mathur (Advocate) And Shri K.K. Anand (Advocate) (in remaining appeals) for Appellants Shri Mohd. Altaf (Assistant Commissioner) AR for Respondent ORDER Per: Anil G. Shakkarwar The present appeals are directed against Order-in-Original No. 04/Commissioner/Lucknow/2013 dated 09.10.2013 passed by Commissioner, Customs (Preventive), Lucknow. The said Order-in-Original is a common Order-in-Original passed in respect of all the above stated appellants. Therefore, the above stated appeals are taken together for decision. 2. Brief facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also stated that every time Betel Nuts brought from Nepal was got loaded by Nepalese labours only in the mid-night. The officers also found certain markings such as '111 Kolkata IN Transit to Nepal' on few of the gunny bags in which Betel Nuts were packed. Therefore, the said consignment of 40 MT of betel nuts was seized alongwith the such trucks on 14.01.2013. The samples of seized Betel Nuts were shown to local trader M/s Wajirganj Ward Upbhokta Sahkari Samiti Limited, Lucknow on 18.01.2013, who after examination of the samples opined through their letter dated 18.01.2013 that the sample does not appear to be of Indian Origin Betel Nuts and they appeared to be a Foreign Origin probably of Indonesian Origin. The samples were also shown to another local trader M/s Jagat Janani Mahila Upbhokta Sahkari Samiti Limited, Lucknow on 18.01.2013, who have through their letter dated 18.01.2013 opined that the said Betel Nuts might have been imported from Indonesia. On the basis of said evidence a show cause notice dated 03.06.2013 was issued wherein it was alleged in the said show cause notice that the said goods were brought from Nepal in contravention of the provisions of Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted his reply to show cause notice in which he has stated that the officers of DRI stopped him when he was carrying Betel Nuts in the truck towards Kanpur and from there he was taken to the DRI office at Lucknow where the goods were seized and he was pressurized to put his signature on the statement prepared by the officers and that the statement was not true and was obtained under force and that he had submitted an affidavit to Additional Director General DRI, Lucknow, retracting his statement dated 14.01.2013. Shri Vinod Kumar Kesarwani through his letter dated 15.07.2013 submitted his reply to the show cause notice wherein he has stated that the officers of DRI seized the goods he was transporting through the truck and forced him to put his signature on the papers and those statements i.e. statements dated 14.01.2013 were not voluntary statements, therefore, he had filed affidavit and sent it to Additional Director General DRI, Lucknow retracting those statements. The said show cause notice was adjudicated through impugned Order-in-Original dated 09.10.2013. The finding on the said betel nuts is dealt with in Para 25.1 of the said Order-in-Original wherein the Original Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to establish as to who brought said goods from Nepal to India and through which route they were brought into India and which transport was used. They have also submitted that the entire case is based on statements of two drivers who stated in their statements dated 14.01.2013 that the goods were brought from Nepal and were loaded in their trucks and the said statements were subsequently retracted. Further, evidence of printing on the packing materials of the bags was taken into consideration to establish that the goods were of foreign origin. The Original Authority concluded that the goods were of third country origin on the basis of trade opinions however when the details about the experience and expertise of the persons from whom opinions was sought by appellants, it was not provided to them. It was also contended that the said two drivers in their statements dated 14.01.2013 had stated that the goods were brought from Nepal and that it was possible for the DRI officers to take the lead from the same and interact with the said drivers to know from where they come to know that the goods were brought from Nepal and from such source of their information, they could have proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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