9911796707
TMI Blog2023 (10) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, KOLKATA ] has held that the local trade opinion cannot take 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 - 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable Road Carrier 159, Rabindra Sarani, 2nd Floor Kolkata-700007 and papers of the Trade Tax Department of Uttar Pradesh and the receipt no.03892 dated 26.09.2017 of Loknath Dharmkanta. Market opinion regarding origin of betel nut was obtained from M/s National Traders Lucknow, M/s Jila Sahkari Federation Ltd., Kanpur and M/s Om Sai Enterprises, Lucknow. The representatives of all the three firms opined that the specimen betel nut is of foreign origin. Shri Naresh Kumar, driver of the said vehicle stated in his statement that he carried machhalidana from Delhi and unloaded on 24.09.2017 at Goma Howrah and on instructions of the owner, he carried the vehicle to Chandipur Area, near the India Bangladesh border in the evening of 25.09.2017 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 446/2018 dated 21.03.2018. Further, the adjudicating authority has imposed penalty of Rs.2.50 lakhs under Section 112(b) on the respondent no.1 and Rs.1.5 lakhs under Section 112(b) on the respondent no.2, among others. Aggrieved with the said order, the respondents preferred appeal before the First Appellate Authority, wherein learned Commissioner (Appeals) has passed the following orders:- 7. I have gone through the case record. The vehicle loaded with the impugned consignment was intercepted near Kanpur. It is on record that driver was carrying Tax Invoice No.70/C dated 25.9.2017 issued by Appellant-2, and Bilty No. 219 dated 25.9.2017 of M/s Reliable Road Carrier, Kolkata. The driver of the said truck has confirmed that the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 theimpugned goods were imported. There is no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is not sustainable and the same is set aside. The appeal is allowed. Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeals. 3. We have heard the Learned Authorised Representative Shri Manish Raj appearing for the Revenue and Learned Counsel Shri Shubham Agarwal appearing for the respondents. 4. As per the facts on record, the officers intercepted one truck on 27.09.2017, which was found to be loaded with Betel Nuts. On inquiry, the driver of the truck produced the tax invoices dated 25.09.2017 issued in favour of M/s Gautam Trading Company, Delhi as also delivery challan of the transporter and the Transit Declaration Form of Department of Commercial Taxes, Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata) has held that the local trade opinion cannot take 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 origin, the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
