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2016 (11) TMI 759 - CESTAT KOLKATA

2016 (11) TMI 759 - CESTAT KOLKATA - TMI - Onus of proving smuggled character of goods - import of cut betel nuts - proving the contraband or smuggled nature of the seized goods being notified u/s 123 of the Customs Act by the Department - Held that: - the betel nut imported by the respondents herein is a non-notified item and as such, the burden of proof is on the appellant-department to substantiate the allegation of illegal import with evidences. I find that there is no evidence to show that .....

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Third Country Origin Mark is not found in the panchanama and also in the SCN or in the Order-in-Original. The Department has failed to establish that the said goods are of foreign origin - impugned order warrants no interference - appeals dismissed - decided against appellant-Department. - Cus. Appeal No. 76388-76392/14 - Order No. FO/76156-76160/16 - Dated:- 10-11-2016 - Shri P. K. Choudhary, Hon ble Judicial Member Shri S. K. Naskar, Asstt.Commr., for the Revenue Shri Arijit Chakraborty, Advo .....

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the Customs Act, 1962. On adjudication, the adjudicating authority had confirmed the proposal in the SCN. On appeal by the respondents, the lower Appellate Authority had set aside the Order-in-Original on the ground that the Department could not prove the contraband or smuggled nature of the seized goods being notified under Section 123 of the Customs Act and that they have not discharged the responsibility to prove that the goods were illegally imported into India. The lower Appellate Authority .....

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appellant-department to substantiate the allegation of illegal import with evidences. I find that there is no evidence to show that the goods are of foreign origin and had been imported illegally. The Hon ble High Court of Calcutta in the case of Commr. of Customs (Preventive) Vs. Dungarmal Mohata reported in 2006 (200) ELT 522 (Cal.), held that when at the time of inventory if the markings of the names of the foreign countries are not found, then the Revenue had failed to establish a case that .....

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ticularly in Dhupguri of Jalpaiguri from Nepal. Before the Commissioner of Customs the respondent before us wanted to cross-examine the alleged trade experts namely, Ashok Sana, Bhabesh Ghosh, Nepal Ghosh and Gopal Sana. It appears from the order of the Commissioner of Customs (Preventive) that letters were sent to the said four persons whose statements were recorded under Section 108 of the Customs Act. It is evident that the said letters were not served and were returned back undelivered with .....

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ed statements of traders recorded under Section 108 of the Customs Act. When the very existence of the alleged businessmen or traders of betel nuts are in question no reliance can be placed on the alleged statements of such traders recorded by Customs Officers under Section 108 of the Customs Act. Such statements of alleged traders cannot be regarded as voluntary and reliable statements. 26. Betel nuts are grown in abundance in the Districts of Jalpaiguri, and Coochbehar in West Bengal and in th .....

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nt customers of India in trucks receiving orders from them. Therefore, in the instant case the trade opinion cannot form the basis or foundation to establish that the seized betel nuts were smuggled into India from Nepal. In the inventory or seizure memo the addresses of the witnesses were not mentioned and it was also not mentioned over how many number of bags there was writing Biratnagar, Nepal. No reliance can be placed regarding inscription Biratnagar, Nepal, Transit to Calcutta to Nepal whi .....

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e burden was on the Revenue to prove the smuggled nature of the seized good viz., betel nuts and the Revenue has failed to prove or establish that seized betel nuts were of foreign origin and smuggled into India, and consequently, failed to, discharge the burden of proof or onus which was on Customs Authorities. 28. After going through the order of the learned Tribunal we find no illegality in the said order. The learned Tribunal rightly came to the decision that the words Biratnagar, Nepal, Tra .....

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