9911796707
TMI Blog2023 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... nue as held by the Tribunal in the case of BABOO BANIK VERSUS COMMISSIONER OF C. EX. CUS., LUCKNOW [ 2004 (7) TMI 482 - CESTAT, KOLKATA] . Further, the Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [ 2005 (11) TMI 306 - CESTAT, KOLKATA ] has held that the local trade opinion cannot take the place of the legal evidence. The reliance on the opinion of Arecanut Research Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory. As such, the Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id truck produced an invoice No. BA/IGST/004 dated 22.09.2017 which was issued by the appellant and consignee was M/s Ashtha Marketing, New Delhi. Market opinion regarding origin of betel nut was obtained from M/s Swastika Traders, Harteerath, Varanasi and Sunauli Traders, Aurangabad, Varanasi The representative of the firms opined that the said betel nut were of Bangladesh Origin. Shri Mukesh Kumar, driver of the said vehicle, stated in his statement that the impugned goods were loaded at 1 km from Jhaodaga BSF camp, Near India Bangladesh border. Further, a sample of the impugned goods was sent for verification to Arecanut Research and Development Foundation (A.R.D.F), Mangalore. ARDF confirmed in their report that the said goods were of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F.No.33/6/2012-Gen. dated 21.02 2017 in another reply under RTI Act, 2005 the same ministry had confirmed that neither the government has authorized or approved any authority nor it is possible to determine the origination of betel nuts. (iii) The betel nuts are not notified under section 123 of the said Act. Hence, burden of proof regarding improper importation thereof lies with the department. (iv) Mere trade opinion cannot be the basis for confiscation without corroborative evidence. (v) The show cause notice has failed to specify any clause of section 111 for confiscation of the impugned goods. The learned Commissioner (Appeals) passed the following order:- 6. I have gone through the case record. The vehicle loaded with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport regarding the country of origin. Further, even if it is assumed that the impugned goods are of foreign origin, there is no evidence that the same was improperly imported into India. As betel nut is not prohibited for import under the EXIM Policy, it is freely imported and traded in the country. Thus, unless improper importation of the same is proved with positive evidence there is no ground for confiscation of the same under section 111(b) of the said Act which provides for confiscation of any goods imported by land or inland water through any route other than a route specified in a notification issued under section 7(c) of the said Act. The impugned order fails to specify the unauthorized route by which the impugned goods were import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is not sustainable and the same is set aside. The appeal is allowed. 2. Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. 3. We have heard learned Authorized Representative Shri Sarweshwar T. Khairnar appearing for the Revenue and learned Advocate Shri Shubham Agarwal appearing for the respondent. 4. As per the facts on record, the officers intercepted one truck on 24.09.2017, which was found to be loaded with Betel Nuts. On inquiry, the driver of the truck produced the tax invoices dated 22.09.2017 issued by the respondent in favour of M/s Ashtha Marketing, New Delhi as also delivery challan of the transporter and the Transit Declaration Form of Department of Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Lohia v/s CC Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata) has held that the local trade opinion cannot take the place of the legal evidence. We also note that the reliance on the opinion of Arecanut Research Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory. As such we agree with the Appellate Authority that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. Further, even if the betel nuts are held to be of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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