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2023 (7) TMI 113 - AT - CustomsConfiscation - Smuggling of Betel Nuts - discharge of burden to prove u/s 123 of Customs Act - whether Revenue has established the allegation that the seized betel nuts are of foreign origin and are smuggled? - HELD THAT:- Ongoing through the records of the case, it is seen that Appellant has submitted documents that the goods were imported from Myanmar under Indo Myanmar Trade Agreement at a concessional 5% Customs duty - It is found that the investigation has not adduced any evidence with regard to proving smuggled character of the goods, other than finding some contradictions in the documents produced by the Appellant. That from the circumstances leading to seizure, it is found that the place of loading being Silchar, Assam, place of detection being mainstream Assam and both the places are far away from Indo Myanmar Border in Mizoram. Betel nuts are produced hugely in Mizoram & Assam. Directorate of Areca Nut and Spices Development (DANSD,), Ministry of Agriculture, Govt. of India, has published report regarding areca nut production in all the states of India including Mizoram and Assam. Report shows Assam is the second highest grower of Betel nuts and the Mizoram is the 8th highest grower in India. No prudent person on visual examination can ascertain as to whether the Betel nuts under seizure were of Myanmar origin and that too smuggled, when place of seizure is mainland of the country, far away from border - There existed no ‘reasonable belief which is a pre-condition for making seizure under Section 110 of the Customs Act, 1962. The betel nut is not notified under Section 123 of the Customs Act, 1962 and therefore, the burden of proof lies with the department to prove the same. It’s not just enough to prove by negative inference of the documents produced by the appellant on microscopic analysis to find fault. Allegation requires to be proved by cogent and positive evidence. Find that no such positive evidence has been put forth by the department. There is not even a reference or narration as to how and wherefrom the impugned goods are smuggled - Tribunal in the case of DHARMENDRA KR. JHA VERSUS COMMISSIONER OF CUSTOMS (P) , PATNA [2015 (11) TMI 1639 - CESTAT KOLKATA] held that betel nut is not a notified commodity under Section 123 of the Customs Act, Act 1962 and the onus is on the department that seized goods were in fact smuggled in to India. We find that the department has not discharged its burden. Seizure of impugned betel nut is not justified and needs to be set aside. Therefore, nothing survives in the case and appeal is liable to be allowed - appeal allowed.
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