TaxTMI 
TaxTMI 
2023 (9) TMI 1073
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1330 on 09.09.2017 at Khaga, Fatehpur. The truck 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 be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cable duties and charges within the prescribed period, then the recovery of the above ordered 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2023 dated 16th August 2023, observing as follows: "Revenue has filed the present stay application without any authority in the law and the same is not maintainable. 2. Accordingly, the Stay Application 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. The impugned order fails to specify the unauthorized route by which the impugned goods were imported. There is no evidence on record to prove improper importation of the impugned goods. 10. Likewise, the trade opinions given by the local traders 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uts as also confiscating the vehicle with an option to redeem the same on payment of redemption fine respectively. The said order of the Original Adjudicating Authority was set aside by Commissioner (Appeals). 4.8 On going through the impugned order of Commissioner (Appeals), I note 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....missioner (Appeals) in the case of Monjurul Haque Laskar set aside the departments stand on the above ground and the order was upheld by the Tribunal vide Final Order 75038/2019 on an appeal filed by the department. Tribunal observed that (Para 8). Revenue's entire reliance is on the basis of M/s. Arecanut Research & Development Foundation, Mangalore (ARDF) Certificate. As it is reported that the ARDF is not an accredited Laboratory, no legal liability can flow from the report of such institution. The Revenue could not prove that the goods were smuggled or produce any corroborative evidence in support of their case... We also rely on Dungarmal Mohata v. CC (Preventive), Calcutta, 2006 (200) E.L.T. 522 (Cal.)." Affirming this order of Kolkata Bench, Hon'ble Meghalaya High Court as reported at [2022 (382) ELT 592 (Meghalaya)] held as follows: "4. The Division Bench of the Tribunal recorded the finding that the confiscated betel nut is non-notified goods and therefore, burden to prove the fact of smuggling lies on the department and same has not been discharged. In this regard, the department relied upon the certificate issued by the Arecanut Resear....