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TMI Blog2023 (12) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... of these goods, or of illegal importation of the same. The Tribunal in the case of COMMISSIONER OF CUSTOMS (PREVENTIVE) , LUCKNOW VERSUS SHRI SHANTI BISWAS [ 2020 (9) TMI 525 - CESTAT ALLAHABAD ] given a clear finding to the effect that there was no evidence to establish that the goods which were moved within the country were smuggled in the country and therefore has held that action on the part of the revenue to detain the said goods and not released the same in spite of the order of Commissioner (Appeals) is an action of high handedness. It was directed that the black pepper and Betel nuts being released to the respondent immediately. When there was clear-cut finding of the Tribunal that there existed no evidence that black pepper and betel nuts were smuggled into the country. The entire proceedings subsequently on issuance of show cause notice and adjudication thereof is contrary to the principles of judicial discipline. There are no merits in the impugned order of Commissioner (Appeals) - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority on the basis of test report dated 17.03.2020 of Arecanut research & development Foundation, Mangalore concluded in its finding that the said gods were of Indonesian origin. I am also of the view that the said test report is a reliable piece of evidence with regards to origin of betel nuts as ARDF, Mangalore which is a reputed Institution in the field of research and development of betel nut. Thus, the contention of the appellant No.1 that the said betel nuts were purchased from the local market in Assam (India) in cash is nothing but to cover up its country of origin as he failed to produce any concrete evidence in support of his claim either at the time of Adjudicating proceedings or at the time of filing appeal in this office to prove that the said goods are not smuggled ones. I find the Adjudicating authority has rightly confiscated the seized 13125 kg of foreign origin Betel nuts, 2250 Kg of foreign origin Black pepper and 1315 Kg of foreign origin poppy seeds under Section 111(b) of the Customs Act, 1962. Regarding imposition of penalty upon the Appellant No. 1 under Section 112(b) of the Customs Act, I find that Shri Shanti Biswas, has illegally imported p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi through Van No. 05853 of Train No. 15909 (Awadh-Assam with the help of Shri Khagen Sharma, authorized agent of M/s Khanna Logistics. d) The said black pepper had been purchased by him from M/s Ankita Traders, Nagaon, located in nearby village e) The said betel nut and black pepper was being sent to Delhi to himself. f) The sale and purchase of betel nut and black pepper is made by him only through cash payment. g) The trade of said goods is being done in his own name without having any Firm or Company and he is not registered with the GST Department. h) No stock/sale register is being maintained in respect of above goods. i) He has sent the above goods through rail for the first time. j) He will provide related documents in respect of above goods to the department by 25.11.2019. k). In respect of Poppy Seed, he stated that he has not booked the said goods and Shri Khagen Sharma of M/s Khanna Logistics could only throw lights on the said issue." 2.3 Against the seizure appellant made request for provisional release. Vide Order No.13/2019-20 dated 22.11.2019, the request for provisional release of Black Pepper and Betel Nuts were rejected. Subsequently, the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125 (1) & (3) of the Customs Act, 1962. (ii) the aforementioned recovered and seized 1315 kg of poppy seeds valued at Rs.. 15,78,000/- (Rupees Fifteen lakh seventy-eight thousand only), should not be confiscated under Section 111(b) of the Customs Act, 1962. (iii) penalty should not be imposed upon Shri Shanti Biswas under Section 112(b) of the Customs Act, 1962 for illegal import of foreign origin black nut, black pepper & poppy seeds. (iv) penalty should not be imposed upon Shri Akshay Khanna, the legal owner of M/s Khanna Logistics, under Section 112(b) of the Customs Act, 1962 for transportation of illegally imported foreign origin betel nuts, black pepper & poppy seeds. (v) penalty should not be imposed upon "To whomsoever it may concern" under Section 112(b) of the Customs Act, 1962 for illegal import of foreign origin betel nuts, black pepper & poppy seeds and transportation of these goods." 2.6 This show cause notice was adjudicated by the Original Authority vide Order-in-Original No.31/JC/2021 dated 04.08.2021, wherein following has been held:- ORDER 1. I order for absolute confiscation of the seized poppy seeds weighing 1315 kg valued at Rs. 15,78,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No 72729/2018 dated 26.11.2018] has categorically held that no reliance for the establishing the smuggled nature of betel nuts 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 and Black Pepper are not the goods specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere moved within the country, were smuggled in the country and therefore, I hold that it was high handedness on the part of revenue to have detained the said goods not released the same inspite of the order of learned Commissioner (Appeals). I dismissed the appeal filed by revenue. I further direct revenue to release Black Pepper and Betel Nuts to the respondents by 15 March, 2020. Misc. Application is rejected as in-fructuous." 4.5 In my view the Tribunal has in the above order given a clear finding to the effect that there was no evidence to establish that the goods which were moved within the country were smuggled in the country and therefore has held that action on the part of the revenue to detain the said goods and not released the same in spite of the order of Commissioner (Appeals) is an action of high handedness. It was directed that the black pepper and Betel nuts being released to the respondent immediately. When there was clear-cut finding of the Tribunal that there existed no evidence that black pepper and betel nuts were smuggled into the country. The entire proceedings subsequently on issuance of show cause notice and adjudication thereof is contrary to the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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." 4.8 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 certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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