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2022 (7) TMI 248 - AT - CustomsSmuggling - Betel Nuts - foreign origin goods or not - notified goods or not - owner/driver could not produce the documents in support of the goods - Mizoram has no or very less production of Betel nut - burden to prove - HELD THAT:- The Revenue has not adduced any evidence to prove the allegation. 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 is not just enough to prove by negative inference. Allegation requires to be proved by cogent and positive evidence. There are no such positive evidence has been put forth by the department. There is not even a reference or narration as to how and where from the impugned goods are smuggled. The Tribunal in the case of SMT. LALTANPUII VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) , NER, SHILLONG [2020 (12) TMI 377 - CESTAT KOLKATA] and in the case of DHARMENDRA KR. JHA VERSUS COMMISSIONER OF CUSTOMS (P) , PATNA [2015 (11) TMI 1639 - CESTAT KOLKATA] held that betel nut being a non-notified commodity under Section 123 of the Customs Act, 1962 and the onus is on the department that seized goods were in fact smuggled into India, but the department has not discharged its burden. The same ratio applies to the case in hand. The betel nut being non-notified goods; burden to prove the fact of smuggling lies on the department and the same has not been discharged - seizure of impugned betel nut is not justified and needs to be set aside - appeal allowed - decided in favor of appellant.
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