TMI Blog2023 (12) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... stablish the foreign origin of these goods, or of illegal importation of the same. These goods were seized when they were being transported within the country, which do not cross any international border from the place of origin to destination. Impugned goods namely betel nuts are not specified under Section 123 of the Customs Act, 1962 and the burden to prove the smuggled nature of the same is on the Custom Authorities. If the evidences on the basis of which foreign origin of the goods are found unsatisfactory as per the above said decision, it is not found that the Custom Authorities have discharged the burden cast on them under Section 123, ibid. Cancellation of registration under GST may be for violation of the provisions of that Act, and non existence of consignor etc., at specified address do not establish the case of the revenue for holding the goods to be of foreign origin and smuggled into India. There are no merits in the impugned order of Commissioner (Appeals) - appeal allowed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Anuj Agarwal, Advocate for the Appellant Shri Sandeep Pandey, Authorised Representative for the Respondent ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi at Basti Toll effected seizure of 22750 Kgs. of betel nuts owned by the appellant. The seizure of said container loaded with goods was done in presence of independent witnesses. 2.2 Two traders opined that betel nuts were of foreign origin, thus the same was seized under the relevant provisions of the Customs Act. 2.3 To find country of origin to the said betel nut, samples of the said Betel Nuts drawn and the same were sent to Arecanut Research Development Foundation, Mangalore for testing. After testing of the said samples ARDF, Mangalore stated that the said sample of betel nut seems to be of Indonesian origin. 2.4 During the investigation the consigner firm M/s Ganga Enterprises was found to be non-existent at the address mentioned in invoice number 15 dated 08th November, 2019. The appellant had stated that he has purchased the seized betel nuts from local formers and traders of Assam and West Bengal and dispatched the same under proper invoice, manifest, consignment note, money receipt and e-way bill and provided the documents in support of his claim. 2.5 A show cause notice dated 30.12.2020 was issued, asking them to show cause as to why- 2.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been placed on record to establish the foreign origin of these goods, or of illegal importation of the same. These goods were seized when they were being transported within the country, which do not cross any international border from the place of origin to destination. 4.3 In case of Maa Gauri Traders [2019 (369) ELT 1024 (T-All)] Allahabad Bench has held as follows: We also note that the reliance on the opinion of Arecanut Research Development Foundation (ARDF), Manglore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory. As such we agree with the Appellate Authority that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. Further, even if the betel nuts are held to be of foreign origin, the same can be confiscated only when it is proved that betel nuts has been illegally smuggled into the country. Revenue has not produced any evidence to show that the betel nuts in question were smuggled into India. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 material on which the conclusion can be based or no sufficient material. 13. Further in Sewalal Chhogalal (supra) the Court also held in paragraph 67 and 68 that:- 67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh[(1992) 1 SCC 647 : AIR 1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra Kumar v. Firm Prem Machinery Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] , Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285 : AIR 2000 SC 1261] , Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] and Dinesh Kumar v. Yus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign origin. 4.5 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 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) E.L.T. 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 , hence authorities not justified in again relying thereon to justify seizure in question. Tribunal, in the case of M/s. Maa Gauri Traders 2019 (369) E.L.T. 1024 (Tri - All.), held that since betel nuts are also produced in India, in absence of any evidence that confiscated goods were illegally smuggled into India, same cannot be confiscated merely based on test report of an organization which later on also admitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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