TaxTMI 
TaxTMI 
2021 (12) TMI 918
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....es, the Appeals are taken up for final hearing. 3. All the six appeals are against the common Order-in-Original No.49/COMMR/CUS/SLG/2016-17 dated February 9, 2017 passed by the Commissioner of Customs, Central Excise & Service Tax, Siliguri Commissionerate. By the impugned order the learned Commissioner has absolutely confiscated under Section 111(b) of the Customs Act, 1962 (hereinafter referred to as "the Act") a consignment of 82.92 MT of Betel Nuts on the ground of the same being of foreign origin which had been smuggled from Myanmar to India. The learned Commissioner also confiscated the four carrier trucks under Section 115(2) of the Act, but allowed redemption of the vehicles upon payment of redemption fines of Rs. 6,70,000/-, Rs. 5,25,000/-, Rs. 6,50,000/- and Rs. 1,80,000/- respectively. He also directed adjustment of the said redemption fines from the Security Deposits of Rs. 10,60,000/-, Rs. 5,25,000/-, Rs. 6,50,000/- and Rs. 2,88,152/- respectively made by the respective truck owners at the time of provisional release of the seized trucks. The learned Commissioner further imposed the following penalties upon, inter alia, the appellants herein under Section 112(a) and/o....
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....ransporting, dealing and keeping the seized consignment of the said goods and hence were liable to absolute confiscation under Section 111(b) of the Act and the appellants were liable to penalty under Section 112(a) and/or Section 112(b) of the Act. The said conclusion has been arrived at by the learned Commissioner on the following findings: (i) The occupants of the 4 trucks carrying the said goods at the time of their seizure, being the drivers and their helpers, admitted to having realised the smuggled nature of the said goods and having witnessed at the time of loading the said goods on to the trucks, the transfer of the said goods from packages bearing foreign marks to those without; (ii) The said goods had no verifiable ownership, source of procurement and no verifiable destination and that the records produced by the appellants in this regard were found to be fictitious and not genuine. 6. We have heard the learned Counsel for the Appellants and Shri A.K. Singh, learned Authorized Representative for the Department. 7. Shri Arijit Chakraborty, learned Advocate on behalf of the Appellant in Customs Appeal No.75638 of 2017 (Subodh Das Vs. CC) submitted as under: (....
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....Pal and Md. Tashin Shah which was also denied. (vi) There was no investigation caused at the Appellant's residential premises by the investigating authority. No verification was done to find out whether there is any so called godown at his residential premises. In absence of it allegation of loading of Betel Nuts from his residential premises does not stand. Consequently the penalty imposed on the Appellant is liable to be set aside. The learned Advocate further pointed out that no photographs have been relied upon in the Show Cause Notice and there are no charges brought against Shri Asit Pal. Cross examination as prayed for in his reply to Show Cause Notice has been denied. (vii) The Impugned Order imposing penalty upon the Appellant Subodh Kr. Das under Section 112(a) & (b) of the Act is illegal and bad in law and the Appeal is prayed to be allowed. 8. It has been contended on behalf of the other Appellants as under: (i) The Appellant, Md. Tashin Shah carries on business as a merchant trader dealing in purchase and sale of diverse varieties of Betel Nuts, an agricultural produce grown in abundance in Jalpaiguri and Cooch Bihar districts of West Bengal and in Assam, Arunac....
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....246/- dated 01.03.2016 place of dispatch Falakata dated 01.03.2016 Transporter M/s. Tirupati Cargo 2nd Mile Sevak Road, Siliguri consigned from Falakata to Delhi Consignment Note No: 18 dated 01.03.2016 Lorry No: NL01L8734 02. M/s Yash Chirag Brothers Shop No. 16, CorporationBuildingMaskasath, Itwari Nagpur (Maharashtra) TIN No. 27440738943 200 Bags of Betel Nuts Net Weight 15800 kgs @ Rs. 65/- per kg. Tax Invoice SI. No: 88/Falakata dated 01.03.2016 Total Amt. Rs. 10,27,000/- Add CST Rs. 20,540/-. Grand Total Rs. 10,47,540/-. Regulated market Committee Receipt No: 0262408 Book No: 145249 Levy Fee Rs. 10270/- TransporterTirupati Cargo 2nd Mile Sevak Road, Siliguri, Consignment Note No:21 dated 01.03.2016 Consigned from Falakata to Nagpur Lorry No: CG04JA/2966. 03. M/s. Shree Ambica Trading Co. Vishwash Complex, Raval Petrol Pump Unjha (Gujarat) TIN No: 24540302728 248 Bags of Betel Nuts (Betel Nuts Dust) Net weight 19780 kg.@ Rs. 81/- per kg. Tax Invoice SI. No: 87/Dhupguri dated 01.03.2016. Total Amt. Rs. 16,02,180/-Add CST Rs. 32,044/- Grand Total Rs. 16,34,224/-. Regulated Market Committee Receipt No: 0178789 Book No....
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.... 8, 2016 was issued, which was duly replied to in the form of 'Written Notes of Submissions' and submitted at the time of personal hearing. The prayer for cross-examination of several persons whose statements were relied upon was also requested but however was denied. The impugned order was thereafter passed. 9. It is further contended by Shri Arnab Chakraborty, learned Advocate that the impugned order has erred both in law and on facts in confiscating the said goods under Section 111(b) of the Act and imposing penalties upon the five Appellants (Appellant Nos. 1 to 5) under Section 112(a) and/or (b) of the Act on the following grounds: (i) Foreign origin of the said goods not established (a) The said goods were locally sourced and was being sold for indigenous consumption only. They are not of foreign origin and that they were instead purchased from the local markets and/or haat and/or mandi through the proprietary concerns Shree Sai Trading Co., Dhupguri and HAMD Enterprises, Dhupguri of Md. Tashin Shah, both located in Jalpaiguri District of West Bengal. (b) The sale/purchase of agricultural produce such as the said goods, i.e., Betal Nuts, are regulated by the respective....
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....f each other. For instance, an identically worded sentence about the said goods being purportedly smuggled, appears in exactly the second paragraph in all 9 statements of the said 9 occupants of the seized trucks carrying the said goods. Apart from such observation, there are numerous other portions of the said witness statements of the said 9 occupants that are identically constructed and/or worded. It is coincidental that allegedly independent and voluntary statements given by 9 different individuals, who all claim to be not very literate, all bear so many similarities. Since none of the said 9 occupants knew how to write properly, and required the concerned DRI officer to type their narrations, it is likely that the independence, uniqueness and veracity of the statements have been compromised by the process of such transcription. It is also not verifiable from the records if the statements were provided by the said 9 occupants in each other's presence, in which case, there would be a serious risk of contamination of witness memory. (b) Besides further anomalies and contradictions detailed in the course of hearing, in any event no reliance can be placed on the said statements i....
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....discharge. Reliance in this regard was placed on the decision of the Tribunal in Laxmi Narayan Sharma v. CC, Patna, 2002 (142) ELT 74 (Tri-Kolkata) and the decision of the Hon'ble Calcutta High Court in Commissioner of Customs (Preventive), WB, Calcutta v. DungarmalMohata, 2006 (200) ELT 522 (Cal.). (iv) Goods having indeterminate source cannot lead to a presumption of smuggling (a) It is not disputed in the said impugned order that the said goods were loaded onto the seized trucks in North Bengal, well inside the international border with Myanmar. It is also not disputed that the said goods were being transported to locations inside the country, particularly in Delhi, Gujarat and Maharashtra. In such circumstances even presuming though denying that the ownership of the said goods, their procurement source and destination for onward supply were unverifiable and the covering documents for the said goods were fictitious, there can still be no presumption of the said goods being of a foreign origin. There must be evidence of the said goods having a foreign origin in order for the provisions of the Act to have any application thereto, and the respondent authorities to have an....
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..... 11. We have heard the parties through video conferencing and have carefully perused the appeal records. 12. Section 2(39) of the Act defines "smuggling" in relation to goods to mean "any act or omission which will render such goods liable to confiscation under Section 111 or Section 113". 13. Section 111 of the Act, as sought to be invoked by the said impugned order provides that "The following goods brought from a place outside India shall be liable to confiscation: ... (b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods." 14. Hence, for any smuggling to occur, the goods in question must enter India from a place outside India. The foreign origin of the said goods is thus imperative in order for Sections 111(b) and Section 2(39) to be. 15. It is an undisputed fact that betel nuts are not goods notified under Section 123 of the Customs Act. Hence, no adverse presumption against the appellants could be made about the said goods being smuggled or being of a foreign origin. The burden of proving the foreign origin of the said goods lies heavily on the Dep....
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....liance is placed upon the decision of this Bench of the Tribunal in the case of Kukil Das Vs. Commissioner of Customs, 2004 (177) ELT 345 (T). In this respect reliance is also placed upon the decision of the Principal Bench of the Tribunal at New Delhi in the case of MaqsoodAlam Vs. Commissioner of Customs, 2015 (324) ELT 162 (T). 15.2 In the case of Smt. Laltanpuii Vs. Commissioner of Customs (Prev.), 2020 (12) TMI 377 -CESTAT KOLKATA, in para 10 of the order, this Bench of the Tribunal has observed and held as under: "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. Laltanpuii, it is averred in the OIO that although she submitted a number of purported purchase vouchers, she could not tell the detailed address or contact numbers of the sellers; purchaser issued the....
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....itute who are approached for ascertaining the country of origin of the betel nuts, have also shown their inability to find out the same. In these circumstances, we agree with the learned Consultant's contention that the Revenue has failed to prove the foreign origin of the nuts at the first instance. We further note that the circumstantial evidences referred to by the adjudicating authority also does not prove beyond doubt that the goods were smuggled into the country, though the same may raise certain doubts about the smuggling character of the same, However, they cannot be given the place of evidence, especially when the goods are non-notified and the Revenue is duty-bound to produce sufficient positive and tangible evidence to reflect upon the smuggled character of the betel nuts. Accordingly, taking all these factors into account, we find no justification for confiscation of the betel nuts and the truck involved and for imposition of personal penalties upon the appellants. Their appeals are allowed with consequential reliefs to them." In this respect reliance may also be made to the decision of the Calcutta High Court in the case of Commissioner of Customs (Preventive), WB....
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....ere sourced from outside India. No specimen packet/bag with any foreign markings, or any import document or any invoice or other record that would establish that the said goods had a foreign origin, was recovered from the appellants or any other party. 16.2 It is not disputed in the said impugned order that the said goods were loaded onto the seized trucks in North Bengal, well inside the international border with Myanmar. It is also not disputed that the said goods were being transported to locations inside the country, particularly in Delhi, Gujarat and Maharashtra. 16.3 In the impugned order the Commissioner observes that "there may be a possibility that the subject Betel Nuts too are of foreign origin and were smuggled to India". This finding is based entirely on a presumption for which there is no legal or factual basis disclosed. 16.4 There can be presumption of the said goods being of a foreign origin. There must be evidence of the said goods having a foreign origin in order for the provisions of the Act to have any application thereto. 16.5 The genuineness of substantial market receipts issued from Dhupguri and Falakata markets have also not been disputed. By the statem....
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....n which retraction has been made and other relevant factors. It was observed that a retracted confession could be used as a corroborative piece of evidence but cannot form the sole basis for returning a finding of guilt. In Union of India Vs. Bal Mukund (supra), in the context of confessional statement under Section 67 of the NDPS Act, the Supreme Court noticed that there can be conviction only if there is an independent corroboration of the retracted statement. In Noor Aga Vs. State of Punjab (supra), the said position was reiterated. The Court held that where the confessional statement was retracted, the burden shifted on the prosecution to prove that it was made voluntarily. It was pointed out that the confessional statement made by the accused while in custody was weak in nature." There being no such independent corroboration in the instant case, the Revenue has failed to discharge its onus and hence the said retracted statements cannot be relied upon. 16.9 In the instant case we also find that there is no discussion on the retraction of statements made on oath by the Appellants. Moreover in the present case the witnesses who implicated the Appellant were not produced for cro....