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TMI Blog2025 (5) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... , has despatched a consignment of 'betel nut' under 2 Tax Invoices Nos. 008/C and 009/C both dated 2.3.18 in favour of M/s. Bight Trading Company of 125, PurbaSinthi Road, Dum Dum, West Bengal. The said two consignments were booked under Railway Receipts Nos. SCL-882551-P25/HWH(3)-V-GHY and SCL-882552-P25/HWH(3)-V-GHY and Parcel Way Bills Nos. C882551 & C88252. Such consignments in course of its transportation through Saraighat Express, on 5.3.2018 was intercepted at New Jalpaiguri Railway Station and subsequently seized under Seizure Case No. 31/IMP/UNCL/CUS/P&I-SLG-CCP-WB/17-18 dated 5.3.18 by the Customs Officers of P&I, Siliguri Divisional Preventive Unit, on the reasonable belief that the said goods were smuggled into the country without payment of applicable customs duties. 2.1. The appellant, being the owner and consignor of the goods, after being informed by the Railway Authority about such interception of the goods by the Customs Officers, at Delhi visited the office of the Customs, P&I, Siliguri and tendered his statement on 28.6.2018. He also submitted copies of invoices and Market Committee Receipts. As the goods were not released, the appellant made a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F. In this regard, the appellant submits that the findings of the Appellate Commissioner that the report of ARDF to be taken as true and correct, is contrary to judicial pronouncements and hence, not maintainable in law. Further, it has been submitted that it is no more res integra that on the basis of report of ARDF, foreign origination of betel nut cannot be determined. Thus, it is their submission that the Appellate Commissioner has failed to maintain the judicial discipline in this regard. 4.1. In support of the above contentions, the appellant relied on the decision of the Hon'ble High Court at Allahabad in the case of Commissioner of Cus. (Prev.) v. Maa Gauri Traders [2019 (368) E.L.T. 913 (All.)]. The appellant submits that in the present case if the report of ARDF is taken out of record, there is no other evidence to suggest that the goods were foreign origin. In such circumstance, it has been submitted that confiscation of the same under Section 111(b) & (d) of the Customs Act, 1962 is bad in law. Reliance in this regard is placed upon the following decisions: i) 200-ELT-522 ii) 275-ELT-183 iii) 284-ELT-636 iv) 138-ELT-358 v) 324-ELT-162 read with 326-ELT-A1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has not brought in any evidence to substantiate the allegation that the said goods were of foreign origin. The only evidence produced by the department in support of the allegation that the betel nuts were of foreign origin is the Report of ARDF. We observe that the foreign origination of betel nut cannot be determined on the basis of the ARDF report. We find that this view has been taken by the Hon'ble High Court at Allahabad in the case of Maa Gauri Traders and in the case of M/s. Maa Kali Traders. The relevant part of the said decision is reproduced below: 7.2. In the present case, we observe that the goods in question are non-notified in nature and as such, the 'burden of proof lies upon the Revenue. The Hon'ble High Court, Calcutta in the case of Ritu Kumar (supra) has categorically held that such 'burden of proof' can never be shifted at any stage of the process of evaluation of the evidence. Similarly, in the case of Raj Kumar Jaiswal (supra), it was held that in case of non-notified goods, Revenue is at obligation first to substantiate the foreign origination of the goods and thereafter to establish smuggled character of the same and until both such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. 18. No other question was pressed by the Counsel for the Revenue. 19. In light of the above, since we do not find any infirmity with the judgment of the CESTAT, and also for the reason that no substantial question of law arises for the determination in the present appeal, the appeal is dismissed." 7.4.1. An identical issue was also dealt with by this Tribunal in the case of Laltanpuii v. Commissioner of Cus. (Preventive), NER, Shillong [2022 (382) E.L.T. 716 (Tri. - Kolkata)], wherein the Bench observed as follows: - "10. The issue for consideration in the instant case is to see whether Revenue has established the allegation that the seized betel nuts are of foreign origin and are smuggled. Ongoing through the records of the case, it is seen that Revenue bases its case on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore and the fact that the owners could not establish the Indian origin of the arecanut. Regarding the allegation against Smt. Laltanpulii, it is averred in the OIO that although s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 that country of origin cannot be determined through test in the laboratory. We also find that Learned Commissioner (Appeals) in the case of Monjurul Haque Laskar set aside the departments stand on the above ground and the order was upheld by the Tribunal vide Final Order 75038/2019 on an appeal filed by the department. Tribunal observed that (Para 8). Revenue's entire reliance is on the basis of M/s. Arecanut Research & Development Foundation, Mangalore (ARDF) Certificate. As it is reported that the ARDF is not an accredited Laboratory, no legal liability can flow from the report of such institution. The Revenue could not prove that the goods were smuggled or produce any corroborative evidence in support of their case... We also rely on Dungarmal Mohata v. CC (Preventive), Calcutta, 2006 (200) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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