TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 1073
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....was loaded with 211 bags of Betel nuts. The driver of the said truck Shri Prakash Singh produced an invoice No. 034/C dated 06.09.2017 which was issued by the appellant. 2.2 Market opinion regarding origin of betel nut was obtained from M/s National Traders, Lucknow, M/s Jagat Janani Mahila Upbhokta, Lucknow and M/s Wazirganj Ward Upbhokta Sahkari Samiti Ltd., Lucknow who stated that the betel nuts were of foreign origin. Shri Prakash Singh, driver of the said vehicle, in his statement dated 11.09.2017 that the impugned goods were loaded at Churchura, Howrah, near Bangladesh border. 2.3 Thus it appeared that the impugned consignment was smuggled into India from Bangladesh in contravention of Notification No.63/94-Cus (NT) dated 21.11.1994 and the same was liable for confiscation under section 111 of the Customs Act,1962. Therefore the said consignment was detained vide detention memo dated 10.09.2017/11.09.2017. 2.4 Samples were drawn from the consignment and sent to Central Drug Research Institute, Lucknow (CDRI) for determination of the origin of detained betel nuts. Since the report of CDRI on the subject of origin of betel nuts was not clear, the samples were got tested from....
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....red Redemption Fine along with applicable duties and charges be done by enforcing the Indemnity Bond given at the time of Provisional release of the above goods and other resources of the consignor/ petitioner. 2. I order to confiscate the seized vehicle no HR-55/V-1330, value Rs 14,26,000/- under section 115 (2) of the Customs Act, 1962, and provide to the vehicle owner an option of releasing the vehicle under Section 125 of the Act on depositing a sum of Rs 1,50,000/- (One Lakh Fifty Thousand only) as Redemption Fine Since the above seized vehicle No HR 55/V - 1330 was provisionally released in compliance to the order dated 21.03.2018 passed by Hon'ble High Court Allahabad in the Writ No.444/2018 after furnishing an indemnity bond in favor of consignor/ petitioner. Therefore, I order to the legal owner of the vehicle to deposit redemption fine of Rs 1,50,000/- (One Lakh Fifty Thousand only), within 30 (thirty) days of the receipt of this Order. I also order that if the legal owner of the goods do not deposit the above ordered Redemption Fine within the prescribed period, then the recovery of the above ordered Redemption Fine be done by enforcing the Bond provided by the leg....
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....pplication filed by the revenue is dismissed. Matter to be taken up for hearing on 15.09.2023." 3.2 None appeared for the respondent. However as the matter is in very narrow compass and stands decided in similar cases in favour of the respondents by various decisions of this bench, the matter has been taken up for consideration. 3.3 I have heard the learned Authorized Representative Shri Manish Raj for the Revenue who re-iterates the grounds taken in the appeal memo. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 The present appeal has been filed by the revenue only making Smt Tapasya Ganeriwal, Prop M/s Gunjan Enterprises as respondent. Hence I am considered only with the impugned order to the extent it is in respect of the said respondent. No part of this order should be treated as pronouncing or recording any finding in respect of any other person concerned with the impugned order who is not respondent in the present appeal. 4.3 Commissioner (Appeals) recorded following findings in the impugned order: "6. I have gone through the case record. The vehicle loaded with the impugned consignment was....
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....rs are just opinion and they cannot be given the status of legal evidence. 11. As betel nuts are not notified under Section 123 of the said Act, the onus is on the department to prove that the impugned consignment was not properly imported. This onus has not been discharged by the department. In the case of BABOO BANIK vs. Commissioner of Customs Lucknow, reported at 2004 (174) E.L.T. 205 (Tri-Kolkata), Hon'ble Tribunal has held that betel nuts are not notified items and as such it is for the Revenue to prove by production of sufficient evidence that the betel nuts have been smuggled into the country. As no such evidence was produced by the Revenue, the impugned order was set aside and the party's appeal was allowed. 12. Further, in the case of BIJOY KUMAR LOHIA vs. CC Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata), the Hon'ble Tribunal has held that local trade opinion cannot take the place of legal evidence. As Revenue failed to prove by product of tangible evidence that the betel nuts were smuggled into the country, confiscation thereof is not sustainable. 13. Hon'ble CESTAT Allahabad in the case of MAA GAURI TRADERS, vide Final Order No.72729/2018 dat....
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.... that he has primarily gone by the fact that betel nuts are not notified under Section 123 of the Customs Act and the onus to prove that the same are smuggled is on the Revenue as held by the Tribunal in the case of Baboo Banik v/s Commissioner of Customs, Lucknow reported at 2004 (174) E.L.T. 205 (Tri.- Kolkata). Further, the Tribunal in the case of Bijoy Kumar Lohia v/s CC Patna, reported at 2006 (196) E.L.T. 215 (Tri.-Kolkata) has held that the local trade opinion cannot take the place of the legal evidence. 4.9 I also note that the reliance on the opinion of Arecanut Research & Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory. As such, I agree with the Appellate Authority that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. Further, even if the betel nuts are held to be of foreign origin, the same can be confiscated only when it is proved that betel nuts have been il....