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TMI Blog2019 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. We cannot take different view than already expressed by the coordinate bench of this Court. It is otherwise required to maintain judicial discipline - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... wan (supra). For ready reference, certain paragraphs of the judgment referred above are quoted hereunder:- "3. The appeal has been pressed by the appellant on the following proposed substantial questions of law:- (1) Whether the learned CESTAT has erred by disbelieving the test report dated 23.03.2017 of the Arecanut Research & Development Foundation, Mangalore - determining the betel nut s are of Indonesian origin, - on the pretext that in a RTI reply the Directorate of Arecanut and Spices Development, Ministry of Agriculture and Farmer Welfare, Government of Kerala - states that - 'it is not possible to determine the place of origin of betel nut through test', while Agriculture Directorate is not equipped to make such tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification dated 21/11/2019 issued under Section 7 (1)C of the Act and proceedings of confiscation under Section 111 of the Act were initiated and finally the vehicle and the betel nuts were seized under Section 110 of the Customs Act, 1962. 6. The Additional Commissioner Customs (P), Lucknow after giving opportunity to the respondents as provided in the Act, passed the Order-In-Original on 29/03/2018 thereby confiscating the entire lot of betel nuts as well as the vehicle under Sections 111 and 115 respectively of the Customs Act, 1962 and also imposing penalty under Section 112(a)&(b) of the Customs Act, 1962. The aforesaid order was challenged in appeal before the Commissioner (Appeals), Lucknow on the ground that the betel nuts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and there is no evidence to show that it was improperly imported into India, and therefore, in absence of any evidence with regard to the fact that the betel nuts were improperly imported, the confiscation order cannot be sustained and thereby set aside the Order-In-Original. 9. By means of the impugned order the CESTAT agreed with the findings recorded by the Appellate Authority. It concurred with the opinion of the Commissioner (Appeals) to the extent that the onus to prove that the betel nuts were smuggled, lay on the Revenue, and the same burden was not discharge by them, in as much as, it was not possible to determine the place of origin of betel nuts, by testing in the laboratory and the report of the ARDF was, at best, an opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are of foreign origin, or they have been purchased locally as asserted by the respondents before the authorities below. In our considered opinion the issue regarding to origin of the betel nuts, would be purely a question of fact. 12. In the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 the Apex Court has considered as to what would be a "question of fact" as contra-distinguished from a "question of law". In paragraph 65, citing the judgment in the case of Suwalal Chhogalal v. CIT [(1949) 17 ITR 269 (Nag)], the Court has held as under: "... A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in very exceptional circumstances and upon proper circumspection". 14. Similar view has been taken by the Hon'ble Apex Court in Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796 : AIR 2008 SC 1749] . 15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent that the CESTAT after considering all the material on record including the orders passed by the authorities below, have given a concurrent finding of fact that the Revenue could not establish the foreign origin of the betel nuts . The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases they produced the market receipts which has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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