TMI Blog2006 (5) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... de opinion cannot be equated with opinion of expert. We have earlier expressed our finding that in the instant matter the trade opinion cannot be relied upon as the four persons whose statements were recorded were not available for cross-examination before the Commissioner of Customs (Preventive), West Bengal. The learned Tribunal rightly held that the revenue has not been able to discharge the burden placed on them. Thus, we find no merit in the application itself and there is no ground to interfere with the findings of the learned Tribunal. Hence, we find that no question of law arises out of the order of the Tribunal. Accordingly, there is no merit in the reference application and the application accordingly fails and is dismissed. - Bhaskar Bhattacharya and P.N. Sinha, JJ. [Judgment per : P.N. Sinha, J]. - The facts giving rise to the filing of this application under Section 130A of the Customs Act, 1962 by the applicant Commissioner of Customs (Preventive), West Bengal, Calcutta may be summarised as follows : 2.On 13-7-99 the Customs Officers attached to Berhampore Customs Preventive Unit received one telephonic information that a truck loaded with betelnuts had left Siligur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in trading activities concerning betel nuts. Sri Mohata also stated that he used to purchase betel nuts from different persons and traders on cash and credit both. 7.Sri Mohata gave the name of Samir Saha, Biswajit Ghosh, Subrata Ghosh, Radha Sutradhar of Falakata area from whom he used to purchase betel nuts. Sri Mohata also disclosed that he also used to purchase betel nuts from other areas like Dinhata, Madarihut, Kazihut and Salbarhut. Sri Mohata promised to produce purchase vouchers of the gunny bags from local markets and goods were repacked first in poly bags and then in gunny bags. Mr. Mohata stated further that due to lack of proper supervision excess goods were loaded into the truck by the loaders and he had no knowledge about the consignee because he consigned the goods on the advice of the consignee. Mr. Mohata denied any knowledge of the inscription on the gunny bags with markings "Biratnagar, Nepal, Transit to Calcutta to Nepal" and stated that customs officers themselves made such markings. Sri Mohata stated that the goods were of Indian origin. 8.During further follow up action the Customs Officer made local enquiry at Dhupguri Bazar and identified three pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. 13.Summons under Section 108 of the Customs Act was issued upon Surendra Kumar Oswal of Dhupguri but he did not turn up to give any statement. 14.One Babla Pal of Madarihut, Jalpaiguri, one of the suppliers of betel nuts to M/s. Shyam Traders was served with a summons under Section 108 of the Customs Act but, Babla Pal did not turn up to give any statement. 15.Thereafter, show-cause notices were issued upon Dungarmal Mohata of M/s. Shyam Traders and also upon Venkatessa Road Carrier, Dhupguri, M/s. Harakson Maheswari of Dhupguri, B. Muthuswamy, drivers of the truck and Surendra Kumar Oswal, proprietor of M/s. Jyoti Trading Co. as to why the betel nuts would not be confiscated under the provisions of Customs Act and why penalty should not be imposed on the owners under Section 112 and why the vehicles would not be confiscated under Section 115 of the Customs Act. The Commissioner of Customs (Preventive), West Bengal, Calcutta by order dated 21-8-2000 confiscated the betel nuts valued at Rs. 34.36 lakh (approximately) and gave opportunity to the owner of the goods to redeem the same on payment of redemption fine of Rs. 3,50,000/-. The Commissioner of Customs also confiscated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he variety of 'Rotha Supari'. Such variety of betel nuts are not grown or available in India and this variety is grown in Nepal and from Nepal different traders bring such variety of betel nuts into India and in Dhupguri Market. The respondent procured such betel nuts whose origin was in Nepal and despatched the betel nuts in two trucks for Erode at Tamil Nadu from Dhupguri. 20.Mr. Mukherjee contended that it is true that betel nut is a non-notified item in view of Section 123 of the Customs Act. The initial onus was, therefore, on the Customs to establish that the betel nuts which were despatched by the respondent through road challans were of foreign origin and the Customs in the instant case has been able to discharge the initial onus. In the instant matter, the opinion of traders of such business or opinion of betel nut businessmen establishes the fact that seized betel nuts came from Nepal, and such opinion of traders are sufficient and reliable. Statement of businessmen of Dhupguri and Berhampore were recorded under Section 108 of the Customs Act and all such trade experts opined that the seized betel nuts are not grown or produced in India. The statements of the trade expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication and it should be dismissed. 23.After hearing the learned Advocates of the parties we find from the materials on record that the seized items were 150 bags of betel nuts in one truck bearing no. TN-28E/7597 and 195 bags of betel nuts in another truck bearing no. TN-28D/9019. In view of Section 123 of the Customs Act, 1962 the betel nuts are non-notified items. Accordingly, the initial onus of proving that the seized betel nuts were of foreign origin and smuggled into India by the respondent was on the Customs Authorities. In order to prove its case the Customs Authorities placed reliance on opinion of some traders or businessmen who deal with the business of betel nuts. 24.It appears from the materials on record that the Customs Authorities recorded statements of some traders of Dhupguri namely, Gopal Saha, Madan Ghosh and Bhabesh Ghosh under Section 108 of the Customs Act. The Customs Authorities also recorded statement of Ashok Kumar Saha, a merchant of Khagra, Murshidabad under Section 108 of the Customs Act. These persons as it appears in their statements stated that the seized betel nuts are not grown in Assam or in area of Dhupguri. They in their statements stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nuts are grown in abundance throughout the North Eastern States of India including the Districts of Jalpaiguri and Coochbehar of West Bengal, Dhupguri is a famous market and betel nuts are available in abundance in Dhupguri market. The respondent is a trader of betel nuts in Dhupguri and he purchases betel nuts from different suppliers either in cash or on credit and he again sends betel nuts to different customers of India in trucks receiving orders from them. Therefore, in the instant case the trade opinion cannot form the basis or foundation to establish that the seized betel nuts were smuggled into India from Nepal. In the inventory or seizure memo the addresses of the witnesses were not mentioned and it was also not mentioned over how many number of bags there was writing "Biratnagar, Nepal." No reliance can be placed regarding inscription "Biratnagar, Nepal, Transit to Calcutta to Nepal" which were found on some of the seized bags of betel nuts as was alleged by the Revenue. Considering the entire situation, facts and circumstances we are of the view that possibility of making such inscription by officers of Customs cannot be ruled out as it appears that at the time of inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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