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Sri Navratan Jain, Sri Nirmal Baid, Sri Samarendra Nath Deb & Sri Sanjib Deb Versus Commr. of Customs (Prev.) , W.B.

2015 (11) TMI 551 - CESTAT KOLKATA

Confiscation of goods - whether 500 bags of betel nuts seized from vehicle Nos. WB-73/2544, AS-011AC/6672 and DL/GB-2226 are of foreign origin and smuggled into India and whether Shri Nirmal Baid is the rightful claimant of these 500 bags - Held that:- none of the occupants of the vehicle had the prior intimation that they have to go to the site for loading betel nuts of foreign origin. All of the occupants of the vehicles were contacted by a person, who later fled. None of the drivers and the k .....

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o establish that seized betel nuts are of Nepal origin and are smuggled into India. - there are no markings of foreign origin on the bags of the betel nuts. The information received by department and the statements of occupants of vehicles carrying betel nuts is only hearsay evidences and are not corroborated by any other positive evidence.

In the absence of any positive evidence regarding foreign origin of betel nuts in these appeals, it cannot be held that the same are of smuggled .....

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/573,574, 578 & 579/2009 - Order No : FO/A/75605-75608/15 - Dated:- 9-10-2015 - Shri H.K. Thakur, Technical Member For the Petitioner : Sri Arijit Chakraborty, Advocate For the Respondent :L Sri S.P. Pal, Appraiser (A.R.) ORDER Per SHRI H.K. THAKUR These appeals have been filed by the appellants against Order-in-Original No. 25/CUS/CC (p)/WB/2009 dated 31/8/2009 passed by Commissioner of Customs (Prev.) Kolkata. Under this Order-in-Original dated 31/08/2009 , Adjudicating authority has absolutel .....

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Chakraborty (Advocate) appeared on behalf of appellant Shri Nirmal Baid & Shri Navratan Jain whereas written submissions were received from Sanjib Kr. Deb & Shri S.N. Deb , Advocate . Shri Arijit Chakraborty on behalf of his clients argued that on 7/12/2007 morning officers of Customs with the help of BSF intercepted five trucks, bearing registration Nos. WB-73A 7789, WB-73/2544, AS-01AC//6672, DL-1GB2226 and WB-76/3416, near Raninagar BSF Camp, on the basis of one specific information t .....

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d vehicles alongwith its nine occupants and betel nuts were brought to central godown of Siliguri Customs division at West Bengal State warehousing Corporation, Babupara, Siliguri, where two independent witnesses were called and in the presence of those witness and nine occupants of the intercepted vehicle, the goods were verified. That total 54,975 Kgs. (738 bags) of betel nuts, valued at ₹ 27,48,750/- were believed to be of third country origin by the Customs officers and presumed to be .....

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upguri and that Raninagar, where trucks were intercepted, wil have to be touched if one moves from Naxalbari to Dhupguri or from Dhupguri to Kolkata. That even if movement from Naxalbari to Dhupguri is presumed to be correct then also it is a movement of betel nuts within the territory of India and betel nuts is not a commodity notified under Section 123 of the Customs Act, 1962 and that Customs have not discharged their onus that betel nuts are of foreign origin and smuggled into India. 2.1 Lea .....

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3, Dhupguri, District Jalpaiguri. That his claim was not entertained as the summons sent at his address were sent back by postal authority with the remarks 'Refused'. It was argued by the Advocate that endorsement 'Refused' does not mean that the claimant Nirmal Baid did not exist at the given address. That appellant asked for the cross examination of the postal authority who wrote letter dated 4/3/2008 to the investigation, but the same was not allowed. Learned Advocate made the .....

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es tax registration No.192714622003, have filed regular VAT returns as per acknowledged receipts available in their appeal memorandum. Learned Advocate further made the bench go through a certificate dated 13/7/2007 issued to M/s. Shree G.M. Enterprises, Proprietor Nirmal Baid for carrying out the business of General Merchant & commission agent in Betel Nut business. It is his case that when betel nut is purchased from a registered betel nut trader then 4% VAT is paid by such dealer and that .....

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alasis recorded during investigation to argue that none of the nine occupants of the vehicles could say as to on what basis the betel nuts seized were said to be of foreign origin . That knowledge of the nine occupants was only base of hearsay/personal presumption and cannot be treated as a valid evidence. 2.2 Learned Advocate relied upon the following case laws to argue that betel nuts seized cannot be considered as of foreign origin and department has failed to discharge the onus that the same .....

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Sharma Vs. Commr. Of Customs, Patna [2002 (142) ELT 74 (Tri-Kol)] viii) Raj Kumar Keshari Vs. CC (P) , Calcutta [2001 (136) ELT 745 (Tri-Kol)] ix) Kukil Das Vs. Commr. Of Customs, Patna [2004 (177) ELT 345 (Tri.-Kol) x) Commr. Of Customs, Patna Vs. Dwarika Prasad Agarwal [2012 (275) ELT 183 (Pat) xi) CC (P), W.B., Kolkat Vs. Sudhir Saha [2004 (172) ELT 26 (Cal) xii) Sonali Traders Vs. Commr. Of Customs, Allahabad [2013 (298) ELT 302 (Tri.-Del) xiii) Krishna Das Vs. Commr. Of Customs, Lucknow [2 .....

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. That on interception none of the occupants were able to give any document regarding legal acquisition and transportation of the seized goods. Learned A.R.,therefore, strongly argued and defended the order passed by the Adjudicating Authority. 5. Heard both sides and perused the case records. The main issue involved in these appeals is whether 500 bags of betel nuts seized from vehicle Nos. WB-73/2544, AS-011AC/6672 and DL/GB-2226 are of foreign origin and smuggled into India and whether Shri N .....

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drivers and the khalasis of the vehicles ever stated that they have either transferred the seized betel nuts across the border from Nepal or have witnessed such transportation across the border. A perusal of the statements of these drivers/khalasis only convey that from the manner of loading betel nuts from tractors/tempos they thought that the same are of Nepal origin. There are no markings on the 500 bags that the same indicate bear any markings of Nepal origin. In view of the observations re .....

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d that the betel nuts were brought in night through tractors/tempos. Hon'ble High Court of Calcutta in the case of C.C. (Prev.), Calcutta Vs. Dungermal Mohata [2006 (200) ELT 522 (Cal)], relied upon by the appellant, held as follows in para 25 & 26 of the this order: 25.After considering the entire facts and circumstances we are of the view that in the instant case the trade opinion cannot form the basis or foundation to establish the fact that, the seized betel nuts were either of smugg .....

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letters were not served and were returned back undelivered with postal remark that no such person in the given address and hence returned. It is crystal clear that the said four persons whose statements were allegedly recorded by Customs Officers under Section 108 of the Customs Act did not appear before the Commissioner of Customs (Preventive) to face the cross-examination by the present respondent. On the other hand, the postal remark clearly indicate that there was no such person in the giv .....

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Districts of Jalpaiguri, and Coochbehar in West Bengal and in the entire States of Assam, Arunachal Pradesh, Meghalaya, Tripura, Manipur etc. i.e., the betel nuts are grown in abundance throughout the North Eastern States of India including the Districts of Jalpaiguri and Coochbehar of West Bengal, Dhupguri is a famous market and betel nuts are available in abundance in Dhupguri market. The respondent is a trader of betel nuts in Dhupguri and he purchases betel nuts from different suppliers eit .....

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g inscription Biratnagar, Nepal, Transit to Calcutta to Nepal which were found on some of the seized bags of betel nuts as was alleged by the Revenue. Considering the entire situation, facts and circumstances we are of the view that possibility of making such inscription by officers of Customs cannot be ruled out as it appears that at the time of inventory such markings were not there on some bags of betel nuts. The trucks were intercepted at 03.00 hours of 14.7.99, whereas the seizure memo was .....

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the Customs Act, 1962 and burden of proof cannot be shifted to the person from whom the goods are seized . In the case of Krishna Das Vs. C.C., Lucknow [2014 (303) ELT 548 (Tri-Del)] CESTAT also held as follows in para 8,9 & 10: 8. Apart from the fact that there is no evidence on record to show that the foreign origin of the goods, I also note that the betel nuts are neither notified under Chapter IV of the Customs Act nor under Section 123 of the Act. As such, the onus to prove that the sam .....

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. As such, in the absence of any evidence to show that betel nuts in question were actually smuggled, the confiscation of the same cannot be upheld. 9. Further, I find that appellants have produced the Challan form M issued by Assam State Agriculture Marketing Board showing the purchase of betel nuts in question which stand discarded by the Commissioner (Appeals) on the ground that appellants have not maintained any records and have intentionally cheated fake documents to cover the consignment .....

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ents have been created/procured to give colour of genuineness to their illegal act and to mislead the department. No verification of the said documents have been made by the department from the Assam State Agriculture Marketing Board. Admittedly, betel nuts do not carry any identification marks so as to relate the consignment to be document produced by the appellants. As such, in the absence of any inquiry made by the Revenue from the issuing authority, Assam State Agriculture Marketing Board, r .....

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