TMI Blog2015 (11) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... e incoherence by presumption does not ipso facto make the seized betel nuts as smuggled goods. It is accordingly held that department is not able to discharge the onus that seized goods were of smuggled nature when appellants have produced the procuring documents, confirmed by their statements. The confiscation of 250 bags of the betel nuts upheld by the first appellate authority is not justified and is set aside. Appeal allowed - decided in favor of appellant. - C/75041, 75035-75040/2015-SM - Final Order No. A/75724-75730/KOL/2015 - Dated:- 30-11-2015 - Shri H.K. Thakur, Member (T) Shri Arijit Chakraborty, Advocate, for the Appellant. Shri S.K. Naskar, AC (AR), for the Respondent. ORDER Appeal No. C/75041/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 22-2-2013 recorded under Section 108 of Customs Act, 1962 confirmed the transport bilti No. 087, dated 14-2-2013 was issued by their Company. He further revealed that the owner of seized betel nuts was Shri Dharmendra Kumar Jha, the proprietor of M/s. Sukanya Traders, Kolkata, he also stated that goods were loaded at Bangaon and on the insistence of Shri Dharmendra Kumar Jha, he mentioned about the goods to be transported from Kolkata to Delhi on the transport documents. 2.3 Shri Dharmendra Kumar Jha, owner of the seized goods in his statement dated 25-2-2013 stated that he is the proprietor of M/s. Sukanya Traders, 178, MG Road, 4th Floor, Room No. 139 Kolkata 700007 which is engaged in import of betel nuts from Bangladesh along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Customs, Patna vide his order dated 28-3-2013 allowed provisional release of the seized truck bearing Regn. No. HR-69-6585 and the seized betel nuts to the legal owners on execution of Bond from full seizure value backed by a Security of 30% of seizure value and a Bank Guarantee of ₹ 60 per kg. The sample drawn at the time of seizure was sent to the Central Food Laboratory, Kolkata, Extension Centre, Raxaul who submitted certificate No. INF/CFL/KOL/RSL/13/April/02 revealing that sample of split Betel nuts was found adulterated. This differed from the test report of Export Inspection Agency, Kolkata obtained from Petrapole LCS in respect of betel nuts imported vide Bill of Entry No. 01426/16/2013, dated 31-1-2013 indicating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Jha, Prop. of M/s. Sukanya Trader, Hoogly, West Bengal to pre-deposit ₹ 30,000/- and 10% of the penalty imposed against each of the other appellants, within a period of four weeks from order date and report compliance directly to the ld. Commissioner (Appeals), Patna, who would proceed with the appeals for decision on merit preferably within a period of three months from the date of communication of this order. The appellants deposited the amount and reported by post and requested for decision of the case. 3. Shri Arijit Chakraborty (Advocate) appearing on behalf of the appellants argued that though the samples of betel nuts drawn at the time of clearances and at the time of seizure were within a week s time but actual testing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case law and argued that Revenue took this case upto Supreme Court but did not succeed as reflected in Para-6 of O-I-A No. 781-784/Pat/Cus./Appeal/2014, dated 31-7-2014 of the same first appellate authority in the case of M/s. Yumana Trading Co. Others. 3.1 Learned Advocate further argued that only certain presumptions and surmises are made by the first appellate authority in Para-16 of the O-I-A dated 28-10-2014 to hold that seized goods are of smuggled nature. It is his case that betel nut is not a notified goods under Section 123 of the Customs Act, 1962 and no evidence has been brought on record by the Revenue that the seized goods were of foreign origin when appellants have produced all the required documents and statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a transport document describing the movement of the goods and the supposed location of the Hqrs. of the Consignor Consignee are irrelevant to the issue. (iv) Obligation under Section 123 is fully discharged and the evidences are sufficient to prove that the seized betel nuts were different from those imported and so they were illegally imported. 5.1 It is observed from the case records that sample of the imported cut betel nuts was drawn on 31-1-2013, followed by its test report, indicated the cut betel nuts to be fit for human consumption. Sample of the seized goods was drawn on 17-2-2013. There is a gap of about 17 days between drawal of two samples. It is observed from the case records that sample of the seized goods was tes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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