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TMI Blog2017 (10) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded on the basis of visual examination. They have ignored the evidences. Hence, such order cannot be sustained in the eye of law - appeal allowed - decided in favor of appellant. - Appeal Nos. C/75174-75175/15 - Order No. FO/A/77589-77590/2017 - Dated:- 18-10-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri Arijit Chakraborty, Advocate for the Appellant Shri S.K.Naskar, AC(AR) for the Revenue ORDER Per Shri P. K. Choudhary Briefly stated the facts of the case are that on 26.02.2013, the DRI officers intercepted a truck loaded with 226 Bags of Bengal Kata Supari dispatched from M/s.Ganga Trading Co., Mahuripara to Pitambar Traders, New Delhi on a reasonable belief that the goods are of third country origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof. The ld.Counsel relied upon the following case laws:- (a) CC(P), W.B., Calcutta v. Dugarmal Mohata [2006 (200) ELT 522 (Cal.)] (b) CC(P), W.B., Calcutta v. Raj Kumar Jaiswal [2006 (204) ELT 561 (Cal.)] (c) CC(P) v. Mahendra Singh Purohit [2008 (225) ELT 426 (Bom.)] (d) CC(P), Mumbai v. Aakash Enterprises [2006 (205) ELT 23 (Bom.)] (e) CC(P), Mumbai v. Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom.)] (f) Lakhi Nath Rai v. Commissioner of Customs, Patna [2003 (159) ELT 662 (Tri.-Kol)] (g) Laxmi Narayan Sharma v. Commissioner of Customs, Patna [2002 (142) ELT 74 (Tri.-Kol)] (h) Raj Kumar Keshari v. CC(P), Calcutta [2001 (136) ELT 745 (Tri.-Kol)] (i) Kukil Das v. Commissioner of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash 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 contention that the goods were sold to NCCF in the month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. 5. Thus the opinions that the goods are of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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