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2017 (2) TMI 238

ms Act, 1962 has not been fulfilled - 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 the goods are of foreign origin and had been imported 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 all .....

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of the Customs Act, 1962. On adjudication, the adjudicating authority had confirmed the proposal in the Show Cause Notice. 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, 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 fulfille .....

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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. For better appreciation, relevant Paras of the judgement of the Hon ble High Court of Calcutta in the case cited supra, are 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 .....

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nce 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 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 ther .....

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ed character of the goods and failed to establish that the betel nuts were of foreign origin. The Tribunal rightly came to the decision that statement of trade opinion of local traders cannot prove foreign origin of the goods and in number of cases it was held that in cases involving betel nuts 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 .....

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