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TMI Blog2023 (11) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 positive evidence to establish the foreign origin of the goods and their illegal smuggling into the country, the Appellate Authority is agreed that their confiscation is neither warranted nor justified. There are no infirmity in the impugned order of the Commissioner (Appeals) to the extent it pertains to the respondent in this appeal and the same is upheld - appeal of Revenue dismissed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Manish Raj, Authorised Representative for the Appellant None for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and hence liable for confiscation under Section 111 of the Customs Act, 1962. The truck No.UP-21/CN 1052 used for transportation of the said betel nut was also seized as being liable for confiscation under Section 115 (2) of the Custom Act, 1962. Accordingly a show cause notice dated 11.03.2019 was issued to the respondent and others asking them to show cause as to why the said illegally imported betel nut be not confiscated and penalties not imposed on them for their various acts of omission and commission leading to smuggling of these goods into India. 2.6 As, the consignment appeared to be illegally imported into India and the same was confiscated under Section 111 (b) and appellant among others were penalized under Section 112 (b) of the said Act. The vehicle was also confiscated under Section 115 (2) of the Customs Act, 1962. Proceedings were initiated against the appellant and the matter was adjudicated by Order-in-Original dated 19.02.2020. 2.7 Aggrieved appellant preferred appeal before Commissioner (Appeal), who adjudged the appeals as per the impugned order referred in para-1 above. 2.8 Being aggrieved with the impugned order in respect of the respondent, Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, 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. However, the impugned order fails to specify the unauthorized route by which the impugned goods were imported. There is no evidence on record to prove improper importation of the impugned goods. 8. As betel 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) ELT 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el nuts as also confiscating the vehicle with an option to redeem the same on payment of redemption fine respectively. The said order of the Original Adjudicating Authority was set aside by Commissioner (Appeals). 4.8 On going through the impugned order of Commissioner (Appeals), I note that he has primarily gone by the fact that betel nuts are not notified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 no material on which the conclusion can be based or no sufficient material. 13. Further in Sewalal Chhogalal (supra) the Court also held in paragraph 67 and 68 that:- 67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh[(1992) 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain the order of confiscation and penalty. 17. Considering the aforesaid factual matrix, the judgment of the Hon ble Apex Court in the case of Collector of Customs Vs D. Bhoormull (Supra) would also not be of any assistance to the Revenue, in as much as, they have failed to establish with any degree of probability that a prudent man, on its basis, could believe that the betel nuts were of foreign origin. 4.11 Decision of Allahabad Bench in case of Maa Gauri Traders, was relied upon by the Kolkata Bench in case of Laltanpuii [2022 (382) E.L.T. 716 (Tri. Kolkata)]. The Bench stated as follows: 11. Revenue relies heavily on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore. We find that various fora have held that the institute is not accredited and hence, the report is not reliable. It was held by High Court of Patna 2020 (371) E.L.T. 353 (Pat.) that in absence of any material to show ARDF Mangalore is accredited laboratory by competent authority under Act and Rules, it s report cannot have consequence of fastening of any legal liability and No legal liability can flow from report of such an institution , hence authorities not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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