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2015 (5) TMI 131 - AT - CustomsConfiscation of goods - Imposition of redemption fine - Betel nuts confiscated on doubt of being smuggled - Whether the impugned goods were of foreign original and were smuggled - Held that:- It is seen that betel nuts are not notified under Section 123 of the Customs Act, 1962. Consequently, the onus to prove that the goods are of foreign original and are smuggled is squarely on Revenue and this onus cannot be discharged merely on the basis of suspicion. Neither in Show Cause Notice nor in adjudication order any evidence has been produced as to from where the goods have been smuggled and what is the origin thereof. It is seen that Shri Maqsood Alam has confirmed that the goods were sent by him to M/s. RK Enterprises, who has also confirmed having placed the order therefor. M/s. Bahubali Attractions Pvt. Ltd. has accepted having supplied the goods to Shri Maqsood Alam and has also claimed along with the evidence of cash memos that they had bought almost 46 tons of betel nuts under various cash memos (on payment including VAT) from two cooperative societies, which in turn had bought the goods from NCCF and the cooperative societies have mentioned the invoice numbers of NCCF under which the goods were bought by them (i.e., the cooperative societies). Opinions that the goods are of foreign origin based on visual examination are totally insufficient to quasi judicially arrive at a finding that the goods are of foreign origin. Further being of foreign origin in itself does not mean that the goods are smuggled for which positive evidence is to be produced by Customs authorities to establish the smuggled nature of goods. We find that the Customs has not even attempted to produce any such evidence in the present case. As regards the marking "Triveni, Kolkata in transit to Nepal" found on a few bags, in the case of CC (Preventive) Vs. Dugarmal Mohata (2006 (5) TMI 92 - HIGH COURT AT CALCUTTA), the Kolkata High Court observed, "No reliance can be placed regarding inscription" Biratnagar, Nepal, Transit to Calcutta to Nepal" which were found on some of the seized bags". It may be mentioned here that mere suspicion based on circumstances is not sufficient to sustain the allegation of smuggling. - Customs have failed to establish that the goods were smuggled. Once the allegation of smuggling is held to be unsustainable, no penalties and redemption fine survive - Decided in favour of assessee.
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