AI Drafter 
TaxTMI 
TaxTMI 
2019 (10) TMI 66
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....ilure of the respondent to prove that the seized Betel Nuts are of Indian Origin and that the consignee of the goods is a non-existent entity having not found on the given address? "Whether the impugned final order dated 26.11.2018 of the Customs Excise & Service Tax Appellate Tribunal, Allahabad is against the law laid dowqn by the Hon'ble Apex Court in case of Commissioner of Customs Vs. D. Bhoormull reported in 1983 (13) ELT 1546 (SC)?." We have heard the appeal finally with the consent of the parties. This custom appeal has been preferred against the judgment dated 26.11.2018 passed by the Customs, Excise & Service Tax Appellate Tribunal, Allahabad in Customs Appeal No. C/71164/2018- CU (DB) (Commissioner of Customs, ....
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....tertaining new documents as evidence which were not produced earlier during adjudicating proceedings? 4. It has been submitted by the learned counsel of the appellant that on basis of information a truck bearing registration number HR 55/X -1913 was intercepted on 17/02/2017 near Lucknow, which was carrying betel nuts. On enquiry it was found that the driver was carrying Tax Invoice, Delivery Challan, and Transit Declaration Form. The truck was carrying 19585 KG of betel nuts. The statement of the driver was recorded wherein he stated that he had loaded 47 bags of betel nuts from the market of the Dhupguri and 211 bags from Falakanta as per the orders of the truck owner. The betel nuts were shown to two traders of betel nuts of Luc....
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....nd receipt of levy/cess was also produced as a proof of legitimate purchase and sale as well as record of the price of sale. 7. It was further submitted that the Order-In-Original has been passed in ignorance, and without taking into consideration the aforesaid facts. It was also submitted that the report of Arecanut Research and Development Foundation, Mangalore cannot be relied upon as it is not possible to determine the place of origin of betel nuts by means of testing in the laboratory. The Commissioner (Appeal) considering the rival arguments and material placed by the parties, held that as betel nuts are not notified under Section 123 of the Customs Act, the onus is on the Department to prove that the impugned consignment was....
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....ould have been confiscated only when it was proved that they were illegally smuggled into the country, and in absence of any evidence that the betel nuts in question were smuggled, the confiscation and penalty imposed on the respondents was not justified and therefore the appeal of the Revenue was rejected. 10. The learned counsel for the Revenue has canvassed mainly with regard to the fact that the betel nuts having been proved to be of foreign origin, relying on the report of the ADRF, the Tribunal committed manifest error by not relying on the same, and thereby proceeded to dismiss the appeal preferred by the Revenue. He relied upon the judgment of the Collector of Customs Vs D. Bhoormall, 1983(13)ELT 1546 (SC), to show that the....
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.... 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) ....