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2017 (2) TMI 238 - CESTAT KOLKATA

2017 (2) TMI 238 - CESTAT KOLKATA - TMI - Confiscation of imported goods - cut betel nuts - smuggled character - goods released on the belief that the onus of proving the goods to be smuggled in character as per Section 123 of the Customs 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 .....

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dings 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:- 2-2-2017 - Shri P.K.Choudhary, Member(Judicial) Shri S.K.Naskar, AC(AR) for the Revenue Shri Arijit Chakraborty, Advocate for the Respondent ORDER Per Shri .....

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rdered for provisional release of the seized goods vide order dated 04.03.2013. In compliance to the Hon ble High Court s order, the adjudicating authority issued order for provisional release of the seized goods on 03.12.2013 (modified by order dated 16.12.2013). After completion of investigation Show Cause Notice dated 31.07.2013 was issued to the respondents proposing to confiscate the betel nuts along with truck and to impose penalty under Section 112(a) or, as the case may be, 112(b) of the .....

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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 .....

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nt consider the seized goods to have been illegally imported from Nepal into India. This is purely on assumptions. 3. Heard both sides and on perusal of the appeal records, I find that the lower Appellate Authority had rightly set aside the Order-in-Original as 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 s .....

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he 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 cross- .....

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hose 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 given address and it raises doubt about the genuineness of the alleged statements of traders recorded under Section 108 of the Customs Act. When the very existence of the alleged businessmen o .....

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roughout 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 .....

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s 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 prepared at 11.00 hours of 15-7-99. 27. As a non-notified item the burden was on the Revenue to prove the smuggled nature of the seized good viz., betel nuts and the Revenue has failed to p .....

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