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TMI Blog2023 (10) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... on Order-in-Appeal No.217 & 218-CUS/APPL/LKO/2019 dated 24/04/2019 passed by Commissioner (Appeals) Customs, GST & Central Excise, Lucknow. 2. The facts of the case in brief are that the Officers of Customs (Preventive) Division Lucknow intercepted a truck bearing registration No.PB 06 Q 8781 on 27.9.2017 at Fatehpur-Kanpur Road near Khaga. The truck was loaded with 282 bags of red betel nuts. The driver of the said truck provided a bill/invoice No.070/C dated 25.09.2017 which was issued by M/s S.K. Enterprises, 21, Amartola Street, 3rd Floor, Kolkata issued for M/s Gautam Trading Company, 301, 3rd Floor, Shakarpur, Delhi-110092, bilti Paper No.219 dated 25.09.2017 of M/s Reliable Road Carrier 159, Rabindra Sarani, 2nd Floor Kolkata-700007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple packet to be of Indonesian Origin. In view of the above, it appeared that the impugned consignment was smuggled into India from Indonesia in contravention of Notification No.63/94-Cus (NT) dated 21.11.1994 issued under Section 11 and Section 7(1)(c) of the Act and the same appeared liable to confiscation under section 111 of the said Act. Accordingly, a show cause notice was issued and the adjudicating authority confiscated the impugned betel nuts (Weight 19740kgs) valued at Rs.49,35,000/- under Section 111(b) and 111(d) of the Customs Act, 1962. Whereas the impugned betel nuts had already been released on Bond under order of Hon'ble High Court Allahabad in WP No.446/2018 dated 21.03.2018. Further, the adjudicating authority has im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Arecanut Research & Development Foundation (ARDF) Mangalore, in respect of country of origin was relied for confiscation of the impugned goods. However, the said certificate of ARDF is not reliable in view of the fact that in reply dated 21.02.2017 (available on record) to an RTI query, Directorate of Arecanut and Spices Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala, a major betel nut producing state, has stated that it is not possible to determine the place of origin of Betel nut through test in a Laboratory. Thus, the report of ARDF can only be treated as an opinion and not a scientific test report regarding the country of origin. Further, even if it is assumed that the impugned goods are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 13. Further, in the case of BIJOY KUMAR LOHIA vs CC Patna, reported at 2006 (196) ELT 215 (Tri.- Kolkata), the Hon'ble Tribunal has held that local trade opinion cannot take the place of legal evidence. As Revenue failed to prove by production of tangible evidence that the betel nuts were smuggled into the country, confiscation thereof is not sustainable. 14. Thus, in the absence of any evidence to show that the impugned betel nuts were improperly imported into India, the confiscation of the same is not justified. Consequently, confiscation of the vehicle and imposition of penalty under section 112 is also not justified. Therefore, the impugned order is not sustainable and the same is set aside. The appeal is allowed." Being ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of Rs.1.40 lakhs and Rs.1.60 lakhs respectively. The said order of the Original Adjudicating Authority was set aside by Commissioner (Appeals). Hence, the present appeals by the Revenue. 7. On going through the impugned order of Commissioner (Appeals), we note that he has primarily gone by the fact that betel nuts are not notified under Section 123 of the Customs Act and the onus to prove that the same are smuggled is on the Revenue as held by the Tribunal in the case of Baboo Banik v/s Commissioner of Customs, Lucknow reported at 2004 (174) E.L.T. 205 (Tri.- Kolkata). Further, the Tribunal in the case of Bijoy Kumar Lohia v/s CC Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata) has held that the local trade opinion cannot take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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