TMI Blog2019 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... tel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut And Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala. We cannot take different view than already expressed by the coordinate bench of this Court. It is otherwise required to maintain judicial discipline - Appeal dismissed. - Customs Appeal No. - 2 of 2019 - - - Dated:- 23-9-2019 - Munishwar Nath Bhandari And Alok Mathur JJ. For the Appellant : Dipak Seth For the Respondent : Arijit Chakrabarti,Yogesh Chandra Srivastava ORDER Heard. The appeal is admitted on the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, this appeal can be governed by the judgment in the case of Commissioner Customs(Preventive), Kendriya Bhawan (supra). For ready reference, certain paragraphs of the judgment referred above are quoted hereunder:- 3. The appeal has been pressed by the appellant on the following proposed substantial questions of law:- (1) Whether the learned CESTAT has erred by disbelieving the test report dated 23.03.2017 of the Arecanut Research Development Foundation, Mangalore - determining the betel nut s are of Indonesian origin, - on the pretext that in a RTI reply the Directorate of Arecanut and Spices Development, Ministry of Agriculture and Farmer Welfare, Government of Kerala - states that - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. On the basis of the aforesaid report submitted by the ARDF, Mangalore, the betel nuts were seized on the belief that they had been brought illegally into India in violation of Notification dated 21/11/2019 issued under Section 7 (1)C of the Act and proceedings of confiscation under Section 111 of the Act were initiated and finally the vehicle and the betel nuts were seized under Section 110 of the Customs Act, 1962. 6. The Additional Commissioner Customs (P), Lucknow after giving opportunity to the respondents as provided in the Act, passed the Order-In-Original on 29/03/2018 thereby confiscating the entire lot of betel nuts as well as the vehicle under Sections 111 and 115 respectively of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not possible to determine the place of origin of betel nuts through a laboratory test. The Commissioner (Appeals), therefore, allowed the appeal holding that the origin of betel nuts cannot be determined through the process of a laboratory testing and there is no evidence to show that it was improperly imported into India, and therefore, in absence of any evidence with regard to the fact that the betel nuts were improperly imported, the confiscation order cannot be sustained and thereby set aside the Order-In-Original. 9. By means of the impugned order the CESTAT agreed with the findings recorded by the Appellate Authority. It concurred with the opinion of the Commissioner (Appeals) to the extent that the onus to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recanut Research and Development Foundation is that this report is given by specialized agency and therefore should have been relied upon by the authorities below. 11. The only question raised in the present appeal is with regard to the origin of the betel nuts, as to whether they are of foreign origin, or they have been purchased locally as asserted by the respondents before the authorities below. In our considered opinion the issue regarding to origin of the betel nuts, would be purely a question of fact. 12. In the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 the Apex Court has considered as to what would be a question of fact as contra-distinguished from a question of law . In paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re even on question of fact but it may be only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as sucit is being clarifiedh, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection . 14. Similar view has been taken by the Hon'ble Apex Court in Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796 : AIR 2008 SC 1749] . 15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent that the CESTAT after considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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