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TMI Blog2023 (12) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... oubted by the department... .The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings......... However, in the present case the consigner appellant firm M/s Ganga Enterprises was found to be non-existent at the address mentioned in the invoice number 15 dated 8th Nov. 2019 and the given address belonged to the house of Mrs. Kanak Prabha Das and even the GSTN No. 19AXKPY9108L1ZH issued to Mr. Pankaj Kumar Yadav was found to be cancelled for violation of the provisions of the GST Act, thus, the facts of this case are clearly distinguishable from the one cited by the appellant in his defence. Even the driver of the vehicle Sri Rajesh Sharma was found to be non existent at the address disclosed by him at the time of seizure of the vehicle. The adjudicating authority, keeping in mind the differing facts of the case has, thus rightly held the goods liable for confiscation and penalty imposed upon the appellant and there is nothing on record before me to deviate from this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uts can be placed on the opinion of Arecanut Research & development Foundation, Mangalore. This order has been upheld by the Hon'ble Jurisdictional High Court and has been followed constantly by the Tribunal. The seizure made in the case is course of local transportation of the goods within the country and no evidence has been produced by the department to establish that these goods were of smuggled nature. Tribunal has in its order dated 11.12.2019 while dismissing the revenue appeal against the order of Commissioner (Appeal) allowing the provisional release of the goods, categorically recorded the finding that no evidence has been produced to establish the smuggled nature of these goods. 3.3 Learned Authorized Representative appearing for the Revenue re-iterates the finding recorded in the impugned Order-in-Appeal. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 At the outset it is observed that the impugned goods i.e. Betel Nuts are not the goods specified or notified under Section 123 of the Customs Act, 1962. Thus the burden to prove the smuggled nature of these goods lies on the Custom Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported at [2019 (368) E.L.T. 913 (All.)] observed as follows: "10. The learned counsel for the Revenue has canvassed mainly with regard to the fact that the betel nuts having been proved to be of foreign origin, relying on the report of the ADRF, the Tribunal committed manifest error by not relying on the same, and thereby proceeded to dismiss the appeal preferred by the Revenue. He relied upon the judgment of the Collector of Customs Vs D. Bhoormall, 1983(13)ELT 1546 (SC), to show that the revenue is not required to prove its case with mathematical precision, but is only required to establish such a degree of probability that a prudent man may, on that basis, believe of existence of facts in issue, and therefore submitted that the RTI reply is general in nature while the specific report by the Arecanut Research and Development Foundation is that this report is given by specialized agency and therefore should have been relied upon by the authorities below. 11. The only question raised in the present appeal is with regard to the origin of the betel nuts, as to whether they are of foreign origin, or they have been purchased locally as asserted by the respondents before the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the CESTAT after considering all the material on record including the orders passed by the authorities below, have given a concurrent finding of fact that the Revenue could not establish the foreign origin of the betel nuts . The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings. The report of the ARDF has also been held to be not reliable in as much as it could not be shown with any degree of certainty that the origin of the betel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut And Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala. 16. Further it is relevant to observe that the Revenue did not argue or place any material to indicate that the betel nuts in question were smuggled into India, even if, for a moment, it is assumed that they were of foreign origin, in order to sustain the order of confiscation and penalty. 17. Considering the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (Patna). 5. After hearing the Learned Counsel appearing for the respective parties and after going through the impugned judgment and order, we find no error in the findings given by the Tribunal. The said findings, in our opinion are supported by reasons and therefore, we are not inclined to interfere in this appeal. Appeal has no merit and is accordingly dismissed." 4.7 SLP filed by the revenue against this order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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