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2016 (9) TMI 275 - CESTAT KOLKATA

2016 (9) TMI 275 - CESTAT KOLKATA - TMI - Confiscation of seized betel nuts - Section 111(b) of the Customs Act, 1962 imposition of redemption fine - section 125 of the Customs Act, 1962 imposition of penalty - Section 112(b)(ii) of the Customs Act, 1962 demand of duty - Section 125(2) of the Customs Act, 1962 whether 521 bags of betel nuts are of foreign origin and smuggled into India, so as to attract confiscation, fine and penalty ? Held that: - the case is already decided in Maqsoo .....

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l movement of goods, under the local laws, cannot make the goods liable to confiscation under Section 111(b) of the Customs Act, 1962 imposition of redemption fine, penalty and duty unjustified appeal disposed off decided in favor of appellant. - Appeal Nos. C/75661, 75662 & 75663/16 - Order No. FO/A/75877-75879/16 - Dated:- 18-8-2016 - Shri H.K.Thakur, Member (Technical) Sri Nihar Dasgupta, Advocate for the Appellant Sri S.N.Mitra, AC(AR) for the Respondent ORDER Per Shri H. K. Thak .....

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Customs Act, 1962. Adjudicating Authority also imposed penalty of ₹ 50,000/- upon each of the appellant under Section 112(b)(ii) and also demanded duty under Section 125(2) of the Customs Act, 1962 from the appellants. 2. Shri Nihar Dasgupta (Advocate) appearing on behalf of the appellants argued that all the three appeals have originated from the same OIO and may be taken up together. Learned Advocate submitted that Tangla Police Station recovered 521 bags containing 41,150 kgs of Dry Bet .....

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erception along with Form-K, Form-M and Railway receipts. Learned Advocate made the bench go through the documents, including cash receipt indicating cess paid on supari to Market Committee Tangla Centre. It is the case of the appellants that Adjudicating Authority has brushed aside the documents furnished only on the ground that appellant did not have any trade license, Sale/cash memo etc. indicating purchase of seized goods. That there is no evidence at all in the entire proceedings that seize .....

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Allahabad [2013(298) E.L.T.302(Tri.-Del.). iii) Commr.of Cus.(Preventive), W.B.,Calcutta-vs.-Dungarmal Mohata [2006(200) E.L.T.522(Cal.) 3. Shri S.N.Mitra AC(AR) appearing for the Revenue argued that appellants could not produce any trade license or sale/cash memo regarding purchase of seized goods and that Form M and Form-K relied upon by the appellants do not correspond to the goods recovered/seized. Learned AR reiterated the findings of the Adjudicating Authority. 4. Heard both sides and peru .....

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the investigation the customs officers have reason to believe that said 521 bags of betel nuts were of foreign origin. For the purpose of seizure the reason to belief may be acceptable but such a hearsay evidence is not at all sufficient to order confiscation of goods. There is no evidence on record the seized betel nuts have come to India across international border. There is also no expert/trade opinion that the category /quality of seized betel nuts are not found in India. Betel nut is not a .....

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or confiscation under the Customs Act, 1962. Adjudicating Authority has only concentrated in finding faults with the documents furnished by the appellants without bringing on record as to how seized goods were of foreign origin and were smuggled into India and from where. 5. It is also observed from the case records that under similar factual matrix CESTAT, Delhi in the case of Maqsood ALam vs.- Commr. of Customs, Lucknow (Supra) has allowed an appeal of the appellant by making the following obs .....

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uced as to from where the goods have been smuggled and what is the origin thereof. It is seen that Shri Maqsood Alam has confirmed that the goods were sent by him to M/s. RK Enterprises, who has also confirmed having placed the order therefor. M/s. Bahubali Attractions Pvt. Ltd. has accepted having supplied the goods to Shri Maqsood Alam and has also claimed along with the evidence of cash memos that they had bought almost 46 tons of betel nuts under various cash memos (on payment including VAT) .....

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gned goods that they are not those sold by them. There is force in the appellants contention that the goods were sold to NCCF in the month of March, 2008, which in turn were sold by the cooperative societies in the month of April, 2008 and were further sold by M/s. Bahubali Attractions Pvt. Ltd. in the month of May, 2008 and it is not legally valid to treat the opinions of the personnel of the cooperative societies/NCCF based on mere visual examination of the impugned goods after so many months .....

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e opinion cannot form the basis or foundation to establish the fact that seized betel nuts were either of smuggled character or were of foreign origin and smuggled into India from Nepal. In the case of CC (Preventive) v. Raj Kumar Jaiswal [2006 (204) E.L.T. 561 (Cal.)], the Kolkata High Court observed that if Revenue is unable to disclose even name of foreign country where goods are allegedly manufactured and at same time, is unable to produce anybody who actually smuggled any part of goods from .....

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