TMI Blog2023 (5) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing expressly indicated in the order appealed to confirm the existence of a reasonable belief. Be it, the seizure may be on an alleged specific information, but beyond the point of seizure by police and the goods being handed over to the Customs department and the supply of documents of purchase of goods through M/s Shree Shai Systems, in turn from Customs auction at Forsebganj accounting for the entire 5700 kgs by way of cut uncut betel nuts the appellants have discharged there initial onus. There is no shred of evidence to establish or even state that the goods were smuggled. Having lent a credence to the goods to be procured out of Customs auction, it is for the department to affirmatively negate the same. There is no word in the order in respect of the various unanswered questions framed by the Commissioner, as to the investigations in regard to those primary questions. Moreover, smuggled character of goods is to be led and established by positive evidence and cannot be assumed on the basis of some unanswered probabilities as to non-supply of carriage documents or that of long storage or the character of the goods. It is observed from the investigations undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 1962. Investigations were also undertaken with Shri Bijay Kumar Singh the claimant of the said goods. In defence he submitted a copy of invoice No.133 dated 13th March, 2016 issued by Shri Arvind Kumar Shahee, Patna alongwith a copy of order dated 24th March, 2015. As per investigations carried out and the statements of Shri Bijay Kumar Singh recorded under Section 108 of the Customs Act, the said cut betel nuts were procured by him from M/s Shree Shai System, Patna, under cover of above referred invoice and that the goods were seized while in transit. Investigation undertaken with Shri Sai Systems, Patna confirmed that the impugned goods were sold by them to the appellant and they in turn had procured the said goods from Customs Division, Forbesganj, vide order dated 24th March, 2015. 3. The Ld. Commissioner (Appeals) vide impugned order upheld the orders of the adjudicating authority confiscating the said cut betel nut, allowing their provisional release imposition of redemption fine penalty on the various notices, besides confiscating and allowing provisional release of the truck carrying the impugned goods. In his order in appeal the Ld. Commissioner (Appeals) has obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year ago. The goods were lifted on 29.04.2015 and are claimed to have been sold to the appellant no.01 on 13.03.2016. While the goods auctioned out of Customs Div, Forbesganj consisted of 2420 kg of betel nuts, 60 kg of dry betel nuts and 3303.40 kg of cut betel nuts, the ones seized were entirely cut betel nuts. This in itself proves that the Invoice no.133 dt. 13.03.2016, issued by the appellant no.02 in favour of the appellant no.01, is nothing but a manufactured document to give cover to the illegally imported cut betel nuts. (iii). I also find that the goods that were auctioned by Customs Div, Forbesganj, belonged to various cases pertaining to years from 2013 to 2015. Cut betel nuts are highly perishable commodities and there was no reason for the appellant no. 02 to keep it for nearly a year. The records do not speak about storage capacity of the appellant no. 02 either. (iv) ------------. (v) --------------. (vi). The Adjudicating authority had given five numbers of opportunity on different dates, to all the notices, including the appellants, but none appeared. This proves they had nothing to show that the goods were released from Customs, Forbesganj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nuts and in almost all the case the defence puts up this alibi of the subject goods being part of the goods released/auction from some Customs office --------------- , the claimant of the goods claimed the goods on 18.05.2016, after two months after the date or seizure , may lend some argumentative force for the department s case, however presumption as grave, cannot be considered as a conclusive proof. These arguments may tend to negate the defence s case, but do not discharge the burden cast on the department, to establish the smuggled character of goods. Since being non-notified items the smuggled character of the goods is required to be established by the department led by positive evidence and for any legal action, it has to be beyond an iota of doubt. That the goods were of a perishable nature, or that the appellants have not given any valid reason to hold on to the goods for this long, and such like questions do not come to the help of the department for discharge of their onus. On the contrary the fact of mould infection is indicative of goods being old and their improper storage etc., thereby lending support to the plea of the appellants. No evidence has been led by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the foreign/cross border territories the said goods (if at all were smuggled) had passed through to establish their smuggled character. The report of Arecanut R D Foundation has not been discussed, any further in the order. This fact on the contrary, could lend some support to the argument of the appellants that the impugned goods said to have been procured out of Customs auction vide order dated 24.03.2015 and betel nuts being highly perishable when tested found the product to be highly fungal infected unfit for human consumptions, as being nearly 2 to 3 years old. All these do not absolve the department in discharge of their mandate under the statute. Assailing the evidence tendered by the appellants could sullify it, but it does not help the department to tide over its primary responsibility and onus casted upon them under Section 123 of the Act. 7. In view of the above, the department not being able to discharge the onus cast upon them to establish the smuggled character of the goods, the confirmation of sale to the appellants by Shri Arvind Kumar Shahee picking up the betel nuts in the departmental auction, the order in appeal is set aside and the appeals allowed. ..... 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