TaxTMI 
TaxTMI 
2021 (12) TMI 918
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....e allowed. With the consent of both the sides, 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....
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....n and the Appellants have been found to be engaged in masterminding, organising, smuggling, transporting, 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 Adv....
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....TD. [2009(243) ELT 307 (Tri-Kolkata)] (v) The Appellant had prayed for the Cross Examination of two drivers which was denied. He had prayed for the Cross Examination of Shri Asit 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 bu....
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.... Rs. 81//- per kg. Tax Invoice SI. No: 85/Falakata dated 01.03.2016 Total Amt. Rs. 19,24,560/- Add 2% CST Rs. 38,491/-Grand Total Amt. Rs. 19,63,051/-. Regulated Market Committee money receipt No: 0262410 Book No: 145249 Levy Fee paid Rs. 19246/- 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 A....
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....produced before the Court of Learned Additional Judicial Magistrate on 3rd March 2016. Petitions of retraction of statements filed by drivers were kept on the record of the court and their bail prayers were rejected. (vii) Thereafter, in course of follow up enquiry by DRI officers, statements of various other persons were recorded, including the truck owners/ occupants and the Show Cause Noticees, including Md. Tashin Shah, under Section 108 of the Act. (viii) Thereafter the Show Cause Notice dated September 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 ....
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....Commissioner. (ii) Unreliable witness statements (a) The said statements dated 2.3.2016 of the 9 occupants of the trucks are also unreliable and do not appear to have been voluntarily tendered as alleged in the said impugned order. The purported statements, all dated 2.3.2016, of the said 9 occupants of the seized trucks, are almost identical. A substantial portion of the words used as well as the sentences incorporated, and the overall layout, format and length, as well as the purported observations in the said statements are almost verbatim reproductions of 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....
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....d statements of the said occupants of the seized trucks, the Commissioner has, by denying the cross examination of such witnesses, passed the said impugned order in disregard of established legal principles, and has sought to admit and rely on irrelevant, otiose, inconsistent and wholly unreliable statements of such witnesses for passing the said impugned order. (iii) Burden of proof on Department not discharged. (a) The said goods are not notified goods under Section 123 of the Act. Therefore the burden of proving the foreign origin of the said goods lies heavily on the Department, which it has failed to 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....
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....e Indo-Myanmar border at Manipur and brought to Falakata and Dhupguri for onward transportation of the same to various parts of the country. (b) The occupants of the 4 trucks carrying the said goods at the time of their seizure, being the drivers and their helpers, admitted to 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. (c) 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. 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 go....
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....ion arrived at as regards the foreign origin of the said goods and the smuggled nature by the adjudicating authority is based on surmises and conjectures. The goods were seized far away from the international border in the interior of North Bengal from trucks/warehouses. It is an undisputed fact that betel nuts are sold in the adjoining State of Assam, Monipur as well as the said North District of West Bengal and their adjacent area. In such circumstances, in the absence of any evidence to the contrary disclosed it has to be concluded that the Revenue has been unable to establish the smuggled nature of the seized goods and thus discharged the burden of proof cast upon the Revenue in this respect. In this respect reliance 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 Be....
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....the case of Laxmi Narayan Sharma Vs. Commissioner of Customs, 2002 (142) ELT 74 (T) it has been held by this Bench of the Tribunal as under: "12. We find that the betel nut is a non-notified item under the provisions of Section 123 of the Customs Act, 1962. As such, the onus to show that the goods are of foreign origin and have been smuggled into the country lies heavily upon the Revenue. The adjudicating authority has referred to certain circumstantial evidences which are also in the nature of doubts being expressed by him. The Tribunal in a number of cases assailed that the opinion of the local traders is not sufficient to hold the goods to be of foreign origin. The Spices Board and Central Plantation Crops Research Institute 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....
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.... on the said goods is verified by State authorities. In the instant case from copies of the receipts on record evidencing the market fee paid by the appellant it is evident that the seized consignments of the said goods had been purchased on payment of such cess under the APM Regulation Act. 16.1 Further, it is seen that the said goods when seized were contained in bags with no foreign markings on them. The place of seizure was also within the country, at the Ghoshpukur Toll Plaza near Siliguri in the North of West Bengal. During the course of the investigation undertaken by the DRI, no other incriminatory material was obtained, either from the raids conducted or in course of interrogating witnesses, that would indicate that the said goods were 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 d....
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....lligence Vs. Mahendera Kumar Singhal, 2016 (333) ELT 250 (Del), the Hon'ble Delhi High Court dealing with the similar case as in the instant case where the confessional statements made before the DRI authorities were retracted at the earliest opportunity when produced before the Magistrate after arrest the Revenue's plea that the retraction was not valid and legal was held to be not acceptable. The Hon'ble High Court, inter alia, relying upon the decision of the Hon'ble Supreme Court in Vinod Solanki Vs. Union of India, 2009 (233) ELT 157 (SC), observed as follows: "12. In Vinod Solanki V. Union of India (supra), the Supreme Court explained that where the confessional statement made by accused was retracted, the Court has to be conscious about the manner in 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 ....
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....ld be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them." This decision of Hon'ble Supreme Court is fully applicable to the facts of the instant case. 16.10 In view of the factual analysis above and respectfully following the principles laid down in the aforesaid decisions of the Hon'ble Supreme Court, High Court and the Tribunal and applying the principles laid down therein, we are of the view that the Department has failed to establish that the said g....