TMI Blog2000 (9) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of the truck used in the transportation of the above betel nuts with an option to its owner to redeem the same on payment of redemption fine of Rs. 1.50 lakhs. Penalties of Rs. 1 lakh, Rs. 2 lakhs, Rs. 2 lakhs, Rs. 1 lakh, Rs. 1 lakh, Rs. 5,000/- and Rs. 5,000/- have been imposed on Shri Vijay Singh Daga, Shri Nitya Chakraborty, Shri Ganesh Pd. Agarwal, Shri P.K. Jaiswal, Shri Vikas Trading Co., Shri Nishan Ahmed and Shri Ahsan Ali respectively. 2. The brief facts, of the case leading to the passing of the impugned order by the Commissioner are as follows :- On 12-7-99 the customs officers of Gopalganj found truck No. AS-01G-3945 parked near R.K. Motel, Khajuria. Nobody was found in the said truck and nobody came forward ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative also placed on record photostat copies of return of daily purchase made from marketing yard in respect of seized betel nuts showing payment of appropriate market tax on the goods in question purchased in market and a photocopy of affidavit dated 15-7-1999 sworn in by the driver of the seized truck. Photocopies of certificates issued by commercial check post were also submitted on record. 2.4 The above documents were sent to the respective customs officers having jurisdiction over the areas. Report of Shri Arun Pd., inspector was to the effect that the suppliers of the betel nuts M/s. Ganesh Trading Co. and M/s. Sharma Trading Co., in their statements tendered under Section 108 of the Customs Act, 1962 are to the effect that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was loaded at Guwahati and they were going to Varanasi. However, they could not give the name and address of the consignees and stated that the address was available on the envelop containing bilty of permit which the officers had resumed. 3. On the above basis a show cause notice dated 10-1-2000 was issued to all the concerned parties alleging that the betel nuts in question were of foreign origin and have been smuggled from Nepal into India in contravention of various provisions of Customs Act. Accordingly notice proposed to confiscate the said betel nuts as also the truck in question and to impose penalty upon various persons under Section 112(b) of the Customs Act, 1962. During adjudication M/s. Sharma Trading Co. and M/s. Ganesh Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the submissions made from both the sides and have carefully gone through the impugned order. The findings in respect of the betel nuts is that the same have been smuggled from Nepal to India and are of third country origin. Shri Dey has very strongly argued that there is no proof as regards the foreign origin of the betel nuts in question. The opinion of the local traders given on visual examination cannot be admissible as an expert opinion as has been held by the Tribunal in the case of Shama Valves Ltd. v. CC - 1988 (37) E.L.T. 86. It is admitted position that before alleging that the goods have been imported from another country, foreign origin of the same has to be established beyond doubt by the Revenue. In the present matter we d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati. As such we do not find any reasons to hold that the goods were not of indigenous origin and the same were of foreign origin. 6. We find that the Tribunal in the case of CC (P), Shg. v. Surinder Kr. Jain as reported in 1997 (23) RLT 198 (CEGAT) has held that the first step for the Revenue is to establish that the seized goods were of foreign origin and it is subsequently that the question of legal importation of the same arise. Relevant para 2.2 of the said judgment is reproduced below :- 2.2 I have carefully considered the pleas advanced from both sides. I agree with the submissions of the ld. consultant. Before any charge of the goods being smuggled can be made against any person or in respect of any goods, a finding must be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the opinion of the traders in respect of his findings of the goods having been smuggled from Nepal. Apart from the above here is not even an iota of evidence on record produced by the department to substantiate the charge of smuggling. We are conscious of the legal position that it is not with mathematical precision that the department is required to prove its case, but there should be at least some evidence on record to support the allegations and findings of the Revenue. We do not find any in the present case. Accordingly, we hold that the confiscation of the betel nuts in question was not justified and set aside the same with consequential relief to the claimant owners. 9. As the impugned order confiscating the betel nuts is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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