TMI Blog2023 (12) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Shubham Agarwal, Advocate for the Appellant Shri Manish Raj, Authorised Representative for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order, the adjudicating 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 On 04.11.2019, appellant claimed the ownership of the above seized betel nuts and black pepper. His statement was recorded under Section 108 of the Customs Act, 1962 whereby he stated as follows:- a) He is the owner of above seized 13125 kg Betel Nut and 2250 kg Black Pepper only and he has no relation with the above seized 1315 kg Poppy Seeds. b) The above said betel nut and black pepper had been booked by him from Guwahati to Delhi 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven lakh thirty-two thousand five hundred only) with bond of full seizure value of foreign origin betel nuts and black pepper of Rs. 56,62,500/- (Rupees Fifty-six lakh sixty-two thousand five hundred only) in compliance of the orders of the Additional Commissioner, Customs (Prev.) Commissionerate, Lucknow dated 13.03.2020. Therefore, it may be explained as to why the redemption fine and penalty including duty, should not be recovered from the said Cash security under section 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the impugned order filed by Shri Akshay Khanna legal owner of M/s Khanna Logistics. I am only concern with the appeal of the present appellant. 3.1 I have heard Shri Shubham Agarwal learned Advocate appearing for the appellant and Shri Manish Raj learned Authorised Representative appearing for the revenue. 3.2 Learned Counsel for the appellant submits that the issue involved in the present appeal is no longer res-integra: Tribunal has in the case of Maa Guari Traders [final Order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pholding the Order-in-Appeal No.584-Cus/APPL/LKO/2019 dated 11.12.2019, following has been held:- 4. With the consent of both the sides appeal itself was taken up for hearing. From perusal of appeal records, I note that revenue was aggrieved by the order of learned Commissioner (Appeals) through which he has allowed provisional release of Betel Nuts and Black Pepper. After hearing the learned A.R. appearing for the revenue and on perusal of record, I could not find any evidence to establish that the goods which were 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 actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 authorities below. In our considered opinion the issue regarding to origin of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 aforesaid factual matrix, the judgment of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [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. 4.10 SLP filed by the revenue against this order of Hon ble High Court of Megha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
