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TMI Blog2019 (8) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings. The report of the ARDF has also been held to be not reliable in as much as it could not be shown with any degree of certainty that the origin of the betel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut And Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala. The Revenue did not argue or place any material to indicate that the betel nuts in question were smuggled into India, even if, for a moment, it is assumed that they were of foreign origin, in order to sustain the order of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT both erred by discrediting the Order - In - Original dated 29.03.2018 passed by the Adjudicating Authority, by entertaining new documents as evidence which were not produced earlier during adjudicating proceedings? 4. It has been submitted by the learned counsel of the appellant that on basis of information a truck bearing registration number HR 55/X 1913 was intercepted on 17/02/2017 near Lucknow, which was carrying betel nuts. On enquiry it was found that the driver was carrying Tax Invoice, Delivery Challan, and Transit Declaration Form. The truck was carrying 19585 KG of betel nuts. The statement of the driver was recorded wherein he stated that he had loaded 47 bags of betel nuts from the market of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'Mandis' and 'Haats' which are local agricultural markets, after paying the levy prescribed and regulated by the Market Committee, and receipt of levy/cess was also produced as a proof of legitimate purchase and sale as well as record of the price of sale. 7. It was further submitted that the Order-In-Original has been passed in ignorance, and without taking into consideration the aforesaid facts. It was also submitted that the report of Arecanut Research and Development Foundation, Mangalore cannot be relied upon as it is not possible to determine the place of origin of betel nuts by means of testing in the laboratory. The Commissioner (Appeal) considering the rival arguments and material placed by the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opinion and not conclusive proof with regard to the country of origin. It further held that even in case it is held that the betel nuts were of foreign origin, the same could have been confiscated only when it was proved that they were illegally smuggled into the country, and in absence of any evidence that the betel nuts in question were smuggled, the confiscation and penalty imposed on the respondents was not justified and therefore the appeal of the Revenue was rejected. 10. The learned counsel for the Revenue has canvassed mainly with regard to the fact that the betel nuts having been proved to be of foreign origin, relying on the report of the ADRF, the Tribunal committed manifest error by not relying on the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material. 13. Further in Sewalal Chhogalal (supra) the Court also held in paragraph 67 and 68 that:- 67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh[(1992) 1 SCC 647 : AIR 1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Rag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from local markets, and in support of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings. The report of the ARDF has also been held to be not reliable in as much as it could not be shown with any degree of certainty that the origin of the betel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut And Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala. 16. Further it is relevant to observe that the Revenue did not argue or place any material to indicate that the betel nuts in question were smuggled into India, even if, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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