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TMI Blog2025 (3) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... origin and smuggled into India. In this regard, it is observed that ARDF is not an organization accredited by the Government for issuing the certificate of origin - This view has been expressed by the Hon'ble Allahabad High Court in the case of Maa Kamakhya Trader v. Commissioner of Customs (Preventive) [2024 (3) TMI 140 - ALLAHABAD HIGH COURT], wherein it has been observed that 'The report of the ARDF has also been held to be not reliable inasmuch 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.' Therefore, by relying on the decision, it is held that the ARDF Report alone cannot form the basis for arriving at the conclusion that the goods were of foreign origin and smuggled in nature. The allegation of foreign origin and smuggled nature of the goods must be substantiated with cogent evidence. Confiscation of the goods cannot be done merely on the basis of assumptions and presumptions or a mere suspicion that the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized the consignment of betel nuts available in the said vehicle on the allegation that the betel nuts were of foreign origin, smuggled into India and there was no document available with the carrier evidencing legal purchase of the goods. Consequent to seizure, the Appellant No. 1 had applied for provisional release of the seized goods vide letter dated 20.12.2017. 1.2. Provisional release of the goods was allowed vide Order dated 27.12.2017 against cash security of Rs.2,73,280/- paid by the Appellant vide TR-6 Challan dated 29.12.2017 and on execution of a full value bond. 2. Upon completion of the investigation, a Show Cause Notice C. No. VIII (10)07/CUS/ADJ/JC/CCP/SLG/2018-19/321 dated 05.06.2018 was issued inter alia proposing confiscation of the seized goods under Section 111(b) and (d) of the Customs Act, 1962. 3. On adjudication, the Ld. Additional Commissioner of Customs, Siliguri has passed the Order-in-Original No. 43/JC/CCP/SLG/2018-19 dated 07.03.2019, issued on 12.03.2019, wherein he has ordered for confiscation of the seized betel nuts under Section 111(b) and (d) of the Customs Act, 1962. He has also allowed redemption of the same on payment of a fine of Rs.2,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the transportation of the impugned consignment of betel nuts from M/s. Akash Trading Company, Kamakhaguri, Alipurduar to Falakata, Coochbehar on 13.12.2017. He submits that the Customs Officers intercepted the said vehicle and seized the betel nuts in the vehicle; he was having the document for transportation of the said goods. It is his submission that he was in no way concerned with the alleged importation of the betel nuts without payment of duty. Accordingly, he submits that the penalty imposed on him under Section 112(b) of the Customs Act, 1962 is not sustainable in law. 6.3. In view of the above, both the Appellants have prayed for allowing their appeals. 7. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. 8. Heard both sides and perused the appeal records. 9. We find that the consignment of 16080 kgs. of betel nut was seized from the vehicle bearing Registration No.AS-01/FC/8995 at Coochbehar on 13.12.2017. The Appellant No. 1 has submitted that the driver was carrying the Tax Invoice No. 04 dated 12.12.2017 for transportation of the said goods. Thus, it is his contention that the goods were of domestic origin an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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." 9.1.1. Therefore, by relying on the decision cited supra, we hold that the ARDF Report alone cannot form the basis for arriving at the conclusion that the goods were of foreign origin and smuggled in nature. The allegation of foreign origin and smuggled nature of the goods must be substantiated with cogent evidence. Confiscation of the goods cannot be done merely on the basis of assumptions and presumptions or a mere suspicion that the goods were of foreign origin. 9.2. We also find that there is no corroborative evidence brought on record by the investigation to substantiate the allegation that the goods were of foreign origin and smuggled in nature. Thus, we find that the Department has failed to establish that the goods were of foreign origin and smuggled into the country without payment of customs duties. On the other hand, we find that the appellant has produced Invoice No. 04 dated 12.12.2017 evidencing legal purchase of the goods through domestic sources. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. Commenting upon the said finding, the Learned Tribunal, in our view, rightly held that this finding is based entirely on presumption for which there is no legal or factual basis disclosed. That apart, the Tribunal has also examined the other facts, namely, the statements which were recorded from the respondents at the first instance, which were subsequently retracted before the Learned Magistrate. The Tribunal found that the statements initially recorded from the respondents who are semi-literate persons were identical and one was mirror image of the other and, therefore, the Tribunal rightly disbelieved those statements and in any event the same having been retracted at the earliest point of time, held that the statements could not have been the basis of the adjudication. Further, on facts, the Tribunal found that the goods were seized far away from the international border in the interior of North Bengal from trucks/warehouses and also it is an undisputed fact that betel nuts are sold in the adjoining States of Assam and Manipur as well as north districts of West Bengal and their adjacent area. Therefore, the Tribunal came to the conclusion that in the absence of evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 before the Learned Additional Chief Judicial Magistrate, Siliguri before whom he was produced after arrest. Thus, in the absence of any independent evidence to bring home a charge of smuggling, the Tribunal set aside the adjudication order. Furthermore, the Tribunal noted that there was no discussion on the retraction of statements made on oath by the respondents and the witnesses who implicated the respondents were not produced for cross-examination in spite of a specific request made by the concerned respondent and this request was rejected on the ground that the occupants of the trucks had allegedly described the true facts in course of the statements recorded under Section 108 of the Act which were affirmed by the respondent in CUSTA 22 of 2022." 9.2.2. We find that the ratio of the above decision is squarely applicable to this case. 10. Accordingly, in view of the above discussion and by relying on the decisions referred to above, we hold that the impugned order confiscating the betel nuts in question is not sustainable. Accordingly, we set aside the same. 11. Since the violations alleged by the Department has not been substantiated with evidence, we hold that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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