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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 ..... y seeds weighing 1315 Kg (29 bags of 35 Kg and 06 bags of 50 Kg) were also concealed/hidden among the bags of betel nut. Therefore, the contention of the appellant that the said poppy seeds were of another trader doesn't hold good as the way the same were hidden in the bags of betel nut shows his malafide intention to smuggle the said prohibited goods into India. The appellant No. 1 has further taken the plea that all the goods were covered under E-way bill and the same were also GST paid and the relevant documents were also provided to the department which has never been alleges that such documents are fake or forged. In this regard, I find that the Adjudicating Authority in para 4.5, 4.6 & 4.7 of the impugned order has discussed all the issues at length. The contention of appellant that they had purchased the said Black pepper from M/s Ankita Traders, Nagaon, Assam also found fake as the proprietor of M / s Ankita Traders Smt. Anjana Sutradhar in her statement dated 02.01.2020 recorded under Section 108 of the Customs Act, 1962 categorically denied the issuance of the invoice produced by the appellant. Therefore, I find that the said seized Black pepper was procured clandesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed Charbagh Railway Station, Lucknow. 2.2 In association with the railway staff inspection of the said van loaded with goods was done in presence of two independent witnesses. On inspection they found 192 jute bags of Betel Nut and 50 bags of black pepper which were of loaded in the train and taken into existence as unclaimed paper bags. No person came forward to claim the ownership of the said goods along with the said black pepper and betel nuts. Certain quantity of poppy seeds were also found along with these goods. All these goods were put under seizure. The details of the seized goods are as follows:- S. No. Details of the goods and packaging Quantity (in kg) Country of origin Total estimated market value (in Rupees) 1 Betel nuts - 176 Jute bags 13125 kg (167 bags x 75 kg each = 12525 kg & 09 bags weighing total 600 kg) Foreign 42 ,00,000/-(320 rupees per Kilogram) 2 Black Pepper - 50 Plastic bags 2250 kg (each bag of 45 kg) Foreign 14 ,62,500/-(650 rupees per Kilogram) 3 Poppy seeds in 35 Jute & Plastic bags 1315 kg (29 bags x 35 kg each = 1015 kg & 06 bags x 50kg each = 300kg ) Foreign 15,78,000/-(1200 rupees per kilogram) Total 72 ,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said samples of betel nut seems to be of Indonesian origin. 2.5 A show cause notice dated 19.08.2020 was issued to the appellant and others, asking them to show cause as to why- (i) the aforementioned recovered and seized 13125 kg foreign origin betel nuts valued at Rs. 42,00,000/- (Rupees Forty-two lakh only) and 2250 kg foreign origin black pepper valued at Rs. 14,62,500/- (Rupees Fourteen lakh sixty-two thousand five hundred only), which have been illegally imported into India, in contravention of Section 7 (1) (c) & 11 of the Customs Act, 1962 read with Notification No. 63/94-Cus (NT) dated 21.11.1994, should not be confiscated under Section 111(b) of the Customs Act, 1962. Since the seized goods i.e. 13125 kg foreign origin. betel nuts valued at Rs. 42,00,000/- (Rupees Forty-two lakh only) and 2250 kg foreign origin black pepper valued at Rs. 14,62,500/- (Rupees Fourteen lakh sixty- two thousand five hundred only) have been provisionally released, why redemption fine should not be imposed on him, under provision of section 125 (1) & (3) of the Customs Act, 1962. Further, the party has submitted Cash security for Rs. 11,32,500/- (Rupees Eleven lakh thirty-two thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be liable to Customs duty leviable thereon. Since the goods have been provisionally released to the noticee on furnishing of full bond value and cash security, the cash security of Rs 11,32,500/- deposited by the noticee at the time of provisional release of the goods can be appropriated against redemption fine imposed as above. 3. I impose penalty of Rs 5,00,000/- (Rupees Five Lakh only) upon noticee no.1 Shri Shanti Biswas under Section 112(b) of the Customs Act, 1962. 4. I Impose penalty of Rs 3,00,000/- (Rupees Three Lakh only) upon noticee no.2 Shri Akshay Khanna owner of M/s Khanna Logistics, Delhi under Section 112(b) of the Customs Act, 1962. 5. I reserve the right to impose penalty on "To whomsoever it may concern" under Section 112 of the Customs Act, 1962." 2.7 Appeal against the said order was filed by the appellant and Shri Akshay Khanna legal owner of M/s Khanna Logistics, Delhi. 2.8 Both these appeals were disposed of by the Commissioner (Appeals) by the impugned order referred in para-1 above. Aggrieved appellant Mr. Shanti Biswas has filed present appeal. However, I do not find any appeal against the impugned order filed by Shri Akshay Khanna legal owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) which do not cross any international border from the place of origin to destination. 4.3 It is interesting to note in the present case that against the order of not allowing the provisional release of the betel nuts and black pepper, appellant filed Writ Tax No.134 of 2020 before Hon'ble High Court wherein while disposing of writ petition Hon'ble High Court vide order dated 18.02.2020, following has been held:- "Even though it is palpably evident that the conduct of the customs authorities actually dealing with the matter is suspect, nevertheless, since a statutory appeal before the learned Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been filed (only after filing of this writ petition) and considering the fact that the matter is now before the learned CESTAT, we refrain from passing any order in the instant writ petition and dispose of the matter with a request to the learned CESTAT to try to dispose of the statutory appeal at an early date." 4.4 On the other hand revenue has filed appeal before this Tribunal and the Tribunal vide Final Order No.70241 of 2020 while upholding the Order-in-Appeal No.584-Cus/APPL/LKO/2019 dated 11.12.2019, following has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is proved that betel nuts has been illegally smuggled into the country. Revenue has not produced any evidence to show that the betel nuts in question were smuggled into India. 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 that 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, we agree with the Appellate Authority that their confiscation is neither warranted nor justified. As such, we find no infirmity in the impugned order of the Commissioner (Appeals)." 4.7 The order of the Allahabad Bench was challenged by the revenue before the Hon'ble Allahabad High Court of in Customs Appeal No.3 of 2019. Disposing of this appeal by order dated 21.08.2019, Hon'ble High Court as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks (P) Ltd. [(2000) 4 SCC 285 : AIR 2000 SC 1261] , Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] and Dinesh Kumar v. Yusuf Ali[(2010) 12 SCC 740 : (2010) 4 SCC (Civ) 738] .] 68. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC 1428] this Court held that (SCC p. 638, para 6) it is permissible to interfere even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible-it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection". 14. Similar view has been taken by the Hon'ble Apex Court in Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796 : AIR 2008 SC 1749] . 15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re illegally smuggled into India, same cannot be confiscated merely based on test report of an organization which later on also admitted that country of origin cannot be determined through test in the laboratory. We also find that Learned Commissioner (Appeals) in the case of Monjurul Haque Laskar set aside the departments stand on the above ground and the order was upheld by the Tribunal vide Final Order 75038/2019 on an appeal filed by the department. Tribunal observed that (Para 8). Revenue's entire reliance is on the basis of M/s. Arecanut Research & Development Foundation, Mangalore (ARDF) 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.)." 4.9 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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