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2023 (12) TMI 189 - AT - CustomsSmuggling - Betel Nuts being of foreign origin - no documentary evidences could be produced with regards to legal import - burden to prove - appeal filed without application of mind - HELD THAT:- The appeal are filed in routine manner without any application of mind. The Form CA-5 which has been filed is incomplete and fails to record even the basics of the cases as per the impugned orders of the lower authorities. Commissioner (Appeal) has in appeal filed by four of the aggrieved persons against the order in original set aside the entire Order-in-Original even against the persons whose appeal was not under consideration by him, and revenue files this appeal even without uttering a single word about the same. Might be the revenue is only aggrieved by the setting aside of the order against the respondent and not against setting aside of the entire order in original without any appeal. 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 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. As such, the Appellate Authority is agreed upon that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. 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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