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TMI Blog2023 (12) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2017 at Tenua, Gorakhpur. The truck was loaded with 19810 Kgs of Betel nuts. The driver of the said truck Shri Salauddin produced an invoice No.05/GST dated 20.08.2017, Money Receipt regulated Market Committee (Book No.164735, Receipt No.Q236718) Biliti C.No.049X283 and transport related papers of the truck. 2.2 Market opinion regarding origin of betel nut was obtained from M/s Cheap Traders, Gorakhpur, M/s Sai Ram Traders, Sahabganj, Gorakhpur and who stated that the betel nuts were of foreign origin. Shri Salauddin, driver of the said vehicle, in his statement dated 23.08.2017 that the impugned goods were loaded at Dhupgudi, Jalpaigudi, west Bengal. 2.3 Thus it appeared that the impugned consignment was smuggled into India, in contravention of Notification No.63/94-Cus (NT) dated 21.11.1994 and the same was liable for confiscation under section 111 of the Customs Act, 1962. Therefore the said consignment was detained vide detention memo dated 23.08.2017. 2.4 Samples were drawn from the consignment and sent to Arecanut Research and Development Foundation, Mangalore (ARDF) for determination of the origin of detained betel nuts. ARDF vide its report dated 21.02.2017 to an RTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Redemption Fine along with applicable duties and charges within the prescribed period, then the recovery of the above ordered Redemption Fine along with applicable duties and charges be done by enforcing the Bank Guarantee of Rs.07,50,000/- and Security Document of immovable property equal to the value of Rs.22,00,000/- given at the time of Provisional release of the above goods and remaining amount be recovered from other resources of the consignor/petitioner. 2. I order to confiscate the seized vehicle no.UP-71/T-8789 under section 115 (2) of the Customs Act, 1962 and provide to the vehicle owner an option of releasing the vehicle under section 125 of the Act, on depositing a sum of Rs. 1,75,000/- (One Lakh Seventy Five Thousand Rupees only.) as Redemption Fine. Since, the above seized vehicle no UP-71/T-8789 was provisionally released in favor of the vehicle owner after the execution of a cash security of Rs.2,00,000/- and the Indemnity Bond equal to the seizure value of the vehicle Rs.30,00,000/-. Therefore, I order to adjust in favor of the Customs Department Rs.1,75,000/- from the above amount of the Provisional Release Rs.2,00,000/- as the Redemption Fine of the Vehicle. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application and the respondent had filed a miscellaneous application seeking early hearing of the appeal, which were disposed of by the bench vide Miscellaneous Order No.70067-70068/2023 dated 14th September, 2023, observing as follows:- "3. For the reasons as stated in the miscellaneous application specifically the ground that the issue is in respect of perishable goods which are under seizure/ confiscation, early hearing is allowed 3. As I have allowed the application for early hearing I do not find any merits in the Stay Application filed by the Revenue, which in any case is not maintainable in terms of Rule 28A of the CESTAT, Procedure Rules, 1982, same is dismissed." 3.2 None appeared for the respondent. However as the matter is in very narrow compass and stands decided in similar cases in favour of the respondents by various decisions of this bench, the matter has been taken up for consideration. 3.3 I have heard the learned Authorized Representative Shri Sandeep Pandey appearing for the Revenue who re-iterates the grounds taken in the appeal memo. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport regarding the country of origin. Further, even if it is presumed that the impugned goods are of foreign origin, there is no evidence that the same was improperly imported into India. As betel nut is not prohibited for import under the EXIM Policy, it is freely imported and traded in the country. Thus, unless improper importation of the same is proved with positive evidence there is no ground for confiscation of the same under section 111(b) of the said Act which provides for confiscation of any goods imported by land or inland water through any route other than a route specified in a notification issued under section 7(c) of the said Act. The impugned order fails to specify the unauthorized route by which the impugned goods were imported. There is no evidence on record to prove improper importation of the impugned goods. 12. Likewise, the trade opinions given by the local traders are just opinion and they cannot be given the status of legal evidence. 13. As betel nuts are not notified under Section 123 of the said Act, the onus is on the department to prove that the impugned consignment was not properly imported. This onus has not been discharged by the department. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecanut Research & Development Foundation (ARDF), Mangalore, which reported the same to be of "foreign" origin. 4.7 On the above basis, proceedings were initiated against the respondent for confiscation of betel nuts on the allegation that the same were of foreign origin and appeared to have been illegally smuggled into India. The notice also proposed the confiscation of vehicle in terms of Section 115(2) of the Customs Act. The said proceedings resulted into an order passed by the Original Adjudicating Authority confiscating the seized betel nuts as also confiscating the vehicle with an option to redeem the same on payment of redemption fine respectively. The said order of the Original Adjudicating Authority was set aside by Commissioner (Appeals). 4.8 On going through the impugned order of Commissioner (Appeals), I 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f probability that a prudent man may, on that basis, believe of existence of facts in issue, and therefore submitted that the RTI reply is general in nature while the specific report by the Arecanut 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 paragraph 65, citing the judgment in the case of Suwalal Chhogalal v. CIT [(1949) 17 ITR 269 (Nag)], the Court has held as under: "... A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree of certainty that the origin of the betel 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. 16. Further it is relevant to observe that the Revenue did not argue or place any material to indicate that the betel nuts in question were smuggled into India, even if, for a moment, it is assumed that they were of foreign origin, in order to sustain the order of confiscation and penalty. 17. Considering the aforesaid factual matrix, the judgment of the Hon'ble Apex Court in the case of Collector of Customs Vs D. Bhoormull (Supra) would also not be of any assistance to the Revenue, in as much as, they have failed to establish with any degree of probability that a prudent man, on its basis, could believe that the betel nuts were of foreign origin." 4.11 Decision of Allahabad Bench in case of Maa Gauri Traders, was relied upon by the Kolkata Bench in case of Laltanpuii [2022 (382) E.L.T. 716 (Tri. - Kolkata)]. The Bench stated as follows: "11. Revenue relies heavily on the certificate issued by Arecanut Research an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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