Home Case Index All Cases Customs Customs + AT Customs - 2021 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 918 - CESTAT KOLKATASmuggling - Betel Nuts of foreign origin - goods notified under Section 123 of the Customs Act - adverse presumption against the appellants could be made about the said goods being smuggled or being of a foreign origin? - retraction of statements - HELD THAT:- In the case of COMMR. OF CUS. (PREV.), WB., KOLKATA VERSUS SUDHIR SAHA, [2004 (7) TMI 95 - HIGH COURT AT CALCUTTA], the Division Bench of the Calcutta High Court while holding that betel nuts not being a notified goods under Section 123 of the Customs Act, 1962, further held that the burden to prove the smuggled nature of the said goods was on the Department and the same could not be shifted to person from whom such goods were seized - The facts of the instant case are also similar. Herein also the alleged confessional statements were retracted at the earliest opportunity by the concerned persons. Consequently, the burden of proof to establish smuggled nature of the seized goods was on the Department which it has completely failed to discharge. The conclusion arrived at as regards the foreign origin of the said goods and the smuggled nature by the adjudicating authority is based on surmises and conjectures. The goods were seized far away from the international border in the interior of North Bengal from trucks/warehouses. It is an undisputed fact that betel nuts are sold in the adjoining State of Assam, Monipur as well as the said North District of West Bengal and their adjacent area. In such circumstances, in the absence of any evidence to the contrary disclosed it has to be concluded that the Revenue has been unable to establish the smuggled nature of the seized goods and thus discharged the burden of proof cast upon the Revenue in this respect. In the instant case, it is found that documents on record show that the said goods were purchased from the local markets and/or haat and/or mandi located in Jalpaiguri district of West Bengal; the sale/purchase of agricultural produce, such as Betel Nuts, are regulated by the respective District Regulated Market Committees and their sub-Divisional Offices in terms of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 - In the instant case from copies of the receipts on record evidencing the market fee paid by the appellant it is evident that the seized consignments of the said goods had been purchased on payment of such cess under the APM Regulation Act. In the instant case, there is no discussion on the retraction of statements made on oath by the Appellants. Moreover in the present case the witnesses who implicated the Appellant were not produced for cross-examination, inspite of specific request made on behalf of the Appellant - the Department has failed to establish that the said goods are smuggled goods. The documents produced by the said Appellant are in his favour. Therefore Md. Tashin Shah is to be regarded as owner of the said goods. The said goods are thus required to be returned to the said Appellant, Md. Tashin Shah - Appeal allowed - decided in favor of appellant.
|