TMI Blog2020 (12) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of DHARMENDRA KR. JHA VERSUS COMMISSIONER OF CUSTOMS (P) , PATNA [ 2015 (11) TMI 1639 - CESTAT KOLKATA] held that betel nut is not a notified commodity under Section 123 of the Customs Act, Act 1962 and the onus is on the department that seized goods were in fact smuggled in to India. We find that the department has not discharged its burden. Revenue relies heavily on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore - various fora have held that the institute is not accredited and hence, the report is not reliable - It was held by High Court of Patna in M/S AYESHA EXPORTS VERSUS THE UNION OF INDIA AND ORS. [ 2019 (1) TMI 1633 - PATNA HIGH COURT ] that in absence of any material to show ARDF Mangalore is accredited laboratory by competent authority under Act and Rules, it s report cannot have consequence of fastening of any legal liability and No legal liability can flow from report of such an institution , hence authorities not justified in again relying thereon to justify seizure in question. Tribunal, in the case of COMMISSIONER, CUSTOMS (PREV.) , LUCKNOW VERSUS M/S MAA GAURI TRADERS [ 2018 (11) TMI 1668 - CESTAT ALLAHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices and other documents, including Receipt No. 3215 dated 25.10.2017 issued by Trade Commerce Department, Govt of Mizoram, show indigenous origin of the goods; Goods under seizure are of Assam/ Mizoram origin, purchased from local market/ sellers; Reports of the Agricultural and Processed Food Products Export Development Authority (APEDA) and Directorate of Areca Nut and Spices Development, Ministry of Agriculture, both Government of India indicates that Assam is the 3rd highest and Mizoram is the 8th highest producer of Betel nuts in India during 2017-18; during 2013-14, Mizoram had produced Areca nut of 6050 MT; Place of loading is Vairegte, Mizoram, along Assam-Mizoram border; Distance from Vairegte to border in Champai is 325 Km; Distance from greater Guwahati to Indo - Myanmar border (Champai) is over 600 KM. 3. Learned Counsel submits that it was alleged that Areca nut Research Development Foundation, Mangalore (ARDF) has reported that the samples were found to be of Indonesian origin and unfit for human consumption; Assam State Public Health Laboratory, Guwahati, has not found it to be of foreign origin, but not suitable for human consumption and that a few s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that ... Although Smt Laltanpuii submitted a number of purported purchase vouchesr of Betel nuts, she could not provide the detailed address and contact numbers of sellers and due to that investigation could not verify those vouchers...; He submits that Understandably, it s not the problem of the appellants if the department cannot verify the claim. It is for the department to prove the allegations. Quoting from Wikipedia, learned counsel avers that Mizoram is a land of rolling hills, valleys, rivers and lakes in Northeast India; as many as 21 major hill ranges or peaks of different heights run through the length and breadth of the state, with plains scattered here and there; in the context of topography in Mizoram, precise address and contact number of the tribal sellers located in remote areas is ill conceived. 6. Learned Counsel also submits that Betel nuts are used other than for direct consumption (chewing) also; low variety are used in making Pan masala /Gutkha after processing and removing any fungal infestation; more damaged Betel nuts are used in making ply wood, coloring dye etc.; therefore, it is ill conceived to conduct suo moto food test without considering its us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the same. It s not just enough to prove by negative inference. Allegation requires to be proved by cogent and positive evidence. We find that no such positive evidence has been put forth by the department. There is not even a reference or narration as to how and wherefrom the impugned goods are smuggled. We find that the Tribunal in the case of Dharmendra Kumar Jha 2016(344) ELT 264(Tri-Kol) held that betel nut is not a notified commodity under Section 123 of the Customs Act, Act 1962 and the onus is on the department that seized goods were in fact smuggled in to India. We find that the department has not discharged its burden. 11. Revenue relies heavily on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore. We find that various fora have held that the institute is not accredited and hence, the report is not reliable. It was held by High Court of Patna 2020 (371) ELT 353 (Pat.) that in absence of any material to show ARDF Mangalore is accredited laboratory by competent authority under Act and Rules, it s report cannot have consequence of fastening of any legal liability and No legal liability can flow from report of such an institution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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