TMI Blog2017 (2) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... illegally. Reliance was placed in the case of Commr. of Customs (Preventive) Vs. Dungarmal Mohata [2006 (5) TMI 92 - HIGH COURT AT CALCUTTA], where it was 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 the betel nuts are of foreign origin and smuggled into India. The allegation of findings of the presence of the 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 - appeal dismissed - decided against appellant-Revenue. - Appeal No. C/76393-76396/14 - ORDER NO.FO/A/75076-75079/2017 - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing notified under Section 123 of the Customs Act, 1962 and they have not discharged the responsibility to prove that the goods were legally imported into India. The lower appellate authority had also held that the goods were seized on false ground and that the reasonable belief was not proper. Hence the onus of proving the goods to be smuggled in character as per Section 123 of the Customs Act, 1962 has not been fulfilled. 2. The Ld.Advocate appearing on behalf of the respondents vehemently argued that the department in their grounds of appeal have mentioned that many of the bags containing the betel nuts were having foreign markings indicating foreign origin of the betel nuts. In this regard he argues that nowhere the authorities have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced as follows : 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 smuggled nature or were of foreign origin and smuggled into India particularly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppliers either in cash or on credit and he again sends betel nuts to different 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 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 possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trade opinion cannot be equated with opinion of expert. We have earlier expressed our finding that in the instant matter the trade opinion cannot be relied upon as the four persons whose statements were recorded were not available for cross-examination before the Commissioner of Customs (Preventive), West Bengal. The learned Tribunal rightly held that the revenue has not been able to discharge the burden placed on them . In this case, I find that the allegation of findings of the presence of the 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. 4. In view of the above, the impugned order warrants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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