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2023 (11) TMI 113 - AT - CustomsConfiscation of the vehicle - imposition of penalties under section 112 of Customs Act - Smuggling - Betel Nuts - notified goods - burden to prove - HELD THAT:- On going through the impugned order of Commissioner (Appeals), it is noted that he has primarily gone by the fact that betel nuts are not notified under Section 123 of the Customs Act and the onus to prove that the same are smuggled is on the Revenue as held by the Tribunal in the case of BABOO BANIK VERSUS COMMISSIONER OF C. EX. & CUS., LUCKNOW [2004 (7) TMI 482 - CESTAT, KOLKATA]. Further, the Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [2005 (11) TMI 306 - CESTAT, KOLKATA] has held that the local trade opinion cannot take the place of the legal evidence. It is also noted that the reliance on the opinion of Arecanut Research & Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory - The respondent had also brought on record a survey report on the cultivation of areca nuts in India issued by the Directorate of Arecanut and Spices Development, Ministry of Agriculture, Government of India which shows substantial production of betel nuts in West Bengal, Assam and North Eastern State. In the absence of any positive evidence to establish the foreign origin of the goods and their illegal smuggling into the country, the Appellate Authority is agreed that their confiscation is neither warranted nor justified. There are no infirmity in the impugned order of the Commissioner (Appeals) to the extent it pertains to the respondent in this appeal and the same is upheld - appeal of Revenue dismissed.
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