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TMI Blog2023 (9) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... hat bBABOO 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. It is also noted 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, the Appellate Authority is agreed upon that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. The respondent had also brought on record a survey report on the cultivation of areca nuts in India issued by the Directorate of Arecanut and Spices Development, Ministry of Agriculture, Government of India which shows substantial production of betel nuts in West Bengal, Assam and North Eastern State. In the absence of any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket opinion regarding origin of betel nut was obtained from M/s National Traders, Lucknow, M/s Jagat Janani Mahila Upbhokta, Lucknow and M/s Wazirganj Ward Upbhokta Sahkari Samiti Ltd., Lucknow who stated that the betel nuts were of foreign origin. Shri Prakash Singh, driver of the said vehicle, in his statement dated 11.09.2017 that the impugned goods were loaded at Churchura, Howrah, near Bangladesh border. 2.3 Thus it appeared that the impugned consignment was smuggled into India from Bangladesh in contravention of Notification No.63/94-Cus (NT) dated 21.11.1994 and the same was liable for confiscation under section 111 of the Customs Act,1962. Therefore the said consignment was detained vide detention memo dated 10.09.2017/11.09.2017. 2.4 Samples were drawn from the consignment and sent to Central Drug Research Institute, Lucknow (CDRI) for determination of the origin of detained betel nuts. Since the report of CDRI on the subject of origin of betel nuts was not clear, the samples were got tested from Arecanut Research and Development Foundation, Mangalore (ARDF). ARDF vide its report dated 27.11.2017 categorically opined stating that the betel nuts under detention were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other resources of the consignor/ petitioner. 2. I order to confiscate the seized vehicle no HR-55/V-1330, value Rs 14,26,000/- under section 115 (2) of the Customs Act, 1962, and provide to the vehicle owner an option of releasing the vehicle under Section 125 of the Act on depositing a sum of Rs 1,50,000/- (One Lakh Fifty Thousand only) as Redemption Fine Since the above seized vehicle No HR 55/V 1330 was provisionally released in compliance to the order dated 21.03.2018 passed by Hon'ble High Court Allahabad in the Writ No.444/2018 after furnishing an indemnity bond in favor of consignor/ petitioner. Therefore, I order to the legal owner of the vehicle to deposit redemption fine of Rs 1,50,000/- (One Lakh Fifty Thousand only), within 30 (thirty) days of the receipt of this Order. I also order that if the legal owner of the goods do not deposit the above ordered Redemption Fine within the prescribed period, then the recovery of the above ordered Redemption Fine be done by enforcing the Bond provided by the legal owner of the vehicle and other resources of the legal owner of the vehicle. 3. I impose a penalty under section 112 (b) of Customs Act,1962 on the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the respondent. However as the matter is in very narrow compass and stands decided in similar cases in favour of the respondents by various decisions of this bench, the matter has been taken up for consideration. 3.3 I have heard the learned Authorized Representative Shri Manish Raj for the Revenue who re-iterates the grounds taken in the appeal memo. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 The present appeal has been filed by the revenue only making Smt Tapasya Ganeriwal, Prop M/s Gunjan Enterprises as respondent. Hence I am considered only with the impugned order to the extent it is in respect of the said respondent. No part of this order should be treated as pronouncing or recording any finding in respect of any other person concerned with the impugned order who is not respondent in the present appeal. 4.3 Commissioner (Appeals) recorded following findings in the impugned order: 6. I have gone through the case record. The vehicle loaded with the impugned consignment was intercepted at Khaga on Fatehpur-Kanpur road. It is on record that driver was carrying Tax Invoice No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nuts are not notified under Section 123 of the said Act, the onus is on the department to prove that the impugned consignment was not properly imported. This onus has not been discharged by the department. In the case of BABOO BANIK vs. Commissioner of Customs Lucknow, reported at 2004 (174) E.L.T. 205 (Tri-Kolkata), Hon'ble Tribunal has held that betel nuts are not notified items and as such it is for the Revenue to prove by production of sufficient evidence that the betel nuts have been smuggled into the country. As no such evidence was produced by the Revenue, the impugned order was set aside and the party's appeal was allowed. 12. Further, in the case of BIJOY KUMAR LOHIA vs. CC Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata), the Hon'ble Tribunal has held that local trade opinion cannot take the place of legal evidence. As Revenue failed to prove by product of tangible evidence that the betel nuts were smuggled into the country, confiscation thereof is not sustainable. 13. Hon ble CESTAT Allahabad in the case of MAA GAURI TRADERS, vide Final Order No.72729/2018 dated 26.11.2018, has in similar circumstances held that in absence of any positive e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 123 of the Customs Act and the onus to prove that the same are smuggled is on the Revenue as held by the Tribunal in the case of Baboo Banik v/s Commissioner of Customs, Lucknow reported at 2004 (174) E.L.T. 205 (Tri.- Kolkata). Further, the Tribunal in the case of Bijoy Kumar 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. 4.9 I 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, I 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 origin, the same can be confiscated only when it is proved that betel nuts have been illegally smuggled into the country. Revenue has not produced any evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F) Certificate. As it is reported that the ARDF is not an accredited Laboratory, no legal liability can flow from the report of such institution. The Revenue could not prove that the goods were smuggled or produce any corroborative evidence in support of their case... We also rely on Dungarmal Mohata v. CC (Preventive), Calcutta, 2006 (200) E.L.T. 522 (Cal.). Affirming this order of Kolkata Bench, Hon ble Meghalaya High Court as reported at [2022 (382) ELT 592 (Meghalaya)] held as follows: 4. The Division Bench of the Tribunal recorded the finding that the confiscated betel nut is non-notified goods and therefore, burden to prove the fact of smuggling lies on the department and same has not been discharged. In this regard, the department relied upon the certificate issued by the Arecanut Research and Development Foundation, Mangalore to show that the confiscated goods/betel nuts are of foreign origin. However, the Tribunal refused to consider this certificate on the ground that the said Institution is not accredited and hence the report was not relied on. The Tribunal in this regard relied on the decision of the Patna High Court reported in 2020 (371) E.L.T. 353 (Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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