2005 (11) TMI 306

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....ustoms Officers of Purnea and Katihar visited Katihar Railway Station and got the Brake Vans of Mahananda Express and North East Express, opened before the Railway Officials. On opening the Brake Vans, different numbers of bags containing betel nuts, poppy seeds etc. were found lying inside the said Vans. It was also observed by the Customs Authorities that the qualities of the consignments were different from those grown in the Indian Territories. On demand, the Guard of the respective Train produced different PW Bills of different dates. As per those PW Bills, it was found that the goods in question were booked from different Railway Stations to different destinations. But the names and addresses of the consignors/consignees were not visi....

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....ch reads as follows:- "123. Burden of proof in certain cases. - (1) Where any goods to which this section applies are seized under this Act in the reasonsable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be; (a)     In a case where such seizure is made from the possession of any person, - (i)      on the person from whose possession the goods were seized; and (ii)    if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person, (b)     in any other case, on the person, if any, who claims to be the owner of the goods s....

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.... the opinion of the legal traders are not sufficient to hold the goods to be of foreign origin. In support of his submissions, learned Advocate has cited the following decisions :- (a)     2004 (172) E.L.T. 26 (Cal.) in the case of Commissioner of Customs (Prev.), WB, Kolkata v. Sudhir Saha; (b)     2002 (142) E.L.T. 74 (Tri. - Kolkata) in the case of Laxmi Narayan Sharma v. Commissioner of Customs, Patna; (c)     2003 (156) E.L.T. 131 (Tri. - Kolkata) in the case of Laxmi Narayan Somani v. Commissioner of Customs, Patna; (d)    2004 (177) E.L.T. 345 (T) = 2004 (63) RLT-767 (CESTAT-Kol.) in the case of Kukil Das & Ors. v. CC, Patna. 3. Heard Shri ....

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....pplicable to the cases contemplated under sub-section (2) viz. gold and manufactures thereof and notified goods. Section 123 does not apply to non-notified goods in respect whereof the general rule of evidence is to be followed." 4.1 I find that the Tribunal in a number of cases has held that the trade opinion taken by the Customs cannot take the place of legal evidence. The betel nuts are non-notified items. However, it is an admitted fact that the betel nuts in question are grown in Assam, Meghalaya and its adjoining areas. But the Revenue could not be able to establish that the seized betel nuts are of foreign origin or smuggled. They could also not be able to produce any document relating to the smuggled activities. The whole or....