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TMI Blog2023 (7) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... India including Mizoram and Assam. Report shows Assam is the second highest grower of Betel nuts and the Mizoram is the 8th highest grower in India. No prudent person on visual examination can ascertain as to whether the Betel nuts under seizure were of Myanmar origin and that too smuggled, when place of seizure is mainland of the country, far away from border - There existed no reasonable belief which is a pre-condition for making seizure under Section 110 of the Customs Act, 1962. The betel nut is not notified under Section 123 of the Customs Act, 1962 and therefore, the burden of proof lies with the department to prove the same. It s not just enough to prove by negative inference of the documents produced by the appellant on microscopic analysis to find fault. Allegation requires to be proved by cogent and positive evidence. Find that no such positive evidence has been put forth by the department. There is not even a reference or narration as to how and wherefrom the impugned goods are smuggled - Tribunal in the case of DHARMENDRA KR. JHA VERSUS COMMISSIONER OF CUSTOMS (P) , PATNA [ 2015 (11) TMI 1639 - CESTAT KOLKATA] held that betel nut is not a notified commodity under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal No. CCP/NER/04/2017 dated 29.03.2017, CCP confiscated the goods along with the vehicles, hence the present appeal for a de novo decision. Goods Shri Manik Ranjan Paul have submitted the following documents in support of the claim that the goods were legally imported under Indo-Myanmar Trade Agreement at a concessional rate of Customs duty at 5% by the suppliers- importers of Champai, Mizoram, who have sold the goods on credit to him. (a) Bill of Entry 033/14-15 dated 20.10.2014 027/15-16 dated 04.11.2015 by M/s J.H. family Enterprise (Lalduha) Champhai, Mizoram-importer. (b) 150/14-15 dated 27.10.2014 M/s. Khuangluaia Sons, Champhai, Mizoram. (c) 13/15-16 dated 03.11.2015 14/15-16 dated 03.11.2015 M/s ZOTHAAMAWII Champhai, Mizoram and (d) 19/15-16 dated 03.11.2015 20/15-16 dated 03.11.2015 M/s Thahleikhuaia Champhai, Mozoram. (e) Photo copies of Credit Memos dated 27.02.2016 indicating sale of betel nuts on credit to M/s Paul Traders, Meherpur, Silchar by the four importers. (f) Photo copies of certificates given by the four importers. (g) Photo copies of bill dated 1.3.2016 of M/s Paul Traders indicating sale of betel nuts on credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... betel nuts of Shri Manik Ranjan Paul which is a question of fact merits consideration herein. Ld. D. R. submitted that as per suppliers invoices, Betel nuts weight is 55.5 MT in 564 bags whereas dispatch by the appellant was 54.440 MT in 794 bags, therefore, discrepancy show documents and goods under seizure were different. Consignor of the goods ad indicated in the dispatch challan to be Shri Bimal Roy, Lumding and later to M/s Digi Humb Guwahati. Both the person/ firm are either nonexistent or have denied any responsibility for the goods. This shows ficftious transaction. 4. Findings We find that the Ld. Adjudicating Authority has considered the case of the Order-in-Original, which are summarized as below:- 4.1 It is held that all the sellers have sold the goods for first time on credit to Shri Manik Ranjan Paul, which is doubtful. We find that the para 15(i) of the Order-in-Original finds record that the supplier/importer have stated before the investigation U/s 108 of the Act, as below. They sold betel nuts to Shri Manik Ranjan Paul of Silchar on credit for the first time. Moreover, sellers/ Importer shave reiterated the same fact in reply to the Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 7 Bills of Entry in view of the fact that Betel nuts seized from two trucks were split whereas in the Bills of Entry all the Betel nuts were whole. In this regard, we find that Para 15(vi), of the Order-in-Original finds record that the importers-suppliers have stated that both whole and split Betel nuts were imported by them. Moreover, there is no classification issues for import of betel nuts under the Indo Myanmar Trade Agreement on a concessional rate of duty at 5% as the concession apply to betel nuts, be it whole or split. 4.5. Dry Betel Nuts could not be preserved for more than a year (in the Bill of Entry, Betel nuts were imported on October, 2014 and October, 2015 and the seizure was made on 05.03.2016. We find that whether dry betel nuts could be preserved for more than one year or not, no finding to that effect has been recorded in the Order-in-Original except by showing that there is a gap of one year between import and sale, when according to learned consultant of the appellant dry betel nuts can be preserved after proper treatment for a longer period. Ld. Consultant have drawn our attention that the Tribunal have released the betel nuts after 2-3 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, other than finding some contradictions in the documents produced by the Appellant. 6.2 That from the circumstances leading to seizure, we find that the place of loading being Silchar, Assam, place of detection being mainstream Assam and both the places are far away from Indo Myanmar Border in Mizoram. Betel nuts are produced hugely in Mizoram Assam. Directorate of Areca Nut and Spices Development (DANSD,), Ministry of Agriculture, Govt. of India, has published report regarding areca nut production in all the states of India including Mizoram and Assam. Report shows Assam is the second highest grower of Betel nuts and the Mizoram is the 8th highest grower in India. No prudent person on visual examination can ascertain as to whether the Betel nuts under seizure were of Myanmar origin and that too smuggled, when place of seizure is mainland of the country, far away from border. Perusal of the inventory (Seizure List) made it absolutely clear that the Customs Officer had taken an imaginary view to effect the seizure of the betel nuts. There existed no reasonable belief which is a pre-condition for making seizure under Section 110 of the Customs Act, 1962. 6.3. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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