AI Drafter 
TaxTMI 
TaxTMI 
2023 (11) TMI 113
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....oms Preventive intercepted a truck No.UP-21 CN 1052 on 11.09.2018 at Hitimpur Toll Plaza. The truck was loaded with Chura 2000 kgs, Cut Betel Nuts 3840 kgs, uncut Betel nuts 9440 kgs which total to 15,280 kgs valued at Rs 37,85,600/-. The driver of the said truck produced LR No.SDTC/AF 1736 dated 05.12.2018 issued by M/s Shri Durga Transport Corporation, Biharbari Bailtola Guwahati and an Invoice No.1085 dated 03.09.2018 issued by M/s Tecnodata Solution on which Maa Vaishno Traders C/o Vijay Kumar Gupta was mentioned as customer. On all the transport related documents Maa Vaishno Traders C/o Vijay Kumar Gupta was mentioned as consignee. 2.2 Market opinion regarding origin of betel nut was obtained from various local traders and they stated that the betel nuts were of foreign origin. 2.3 Thus it appeared that the impugned consignment was smuggled into India, 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. 2.4 Samples were drawn from the consignment and sent to Arecanut Research and Development Foundation, Mangalore (ARDF) for ....
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....pondents by various decisions of this bench, the matter has been taken up for consideration. 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 Shri Vijay Kumar Gupta, 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 appellant has contended that the impugned betel nuts were purchased from local Mandi in India. The adjudicating authority has reached the conclusion that the impugned goods are of foreign origin and that the same have been brought into India through unauthorized routes merely on the basis of hearsay, report of the ARDF Mangalore, and opinion of local traders. 7. The report of ARDF Mangalore regarding country of origin of the impu....
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....order dated 23.9.2019." 4.4 From the facts as available as are ascertained from the impugned order and the appeal filed by the revenue, I would before going into the matter would like to observe that the appeal are filed in routine manner without any application of mind. The Form CA-5 which has been filed is incomplete and fails to record even the basics of the cases as per the impugned orders of the lower authorities. Commissioner (Appeal) has in appeal filed by four of the aggrieved persons against the order in original set aside the entire Order-in-Original even against the persons whose appeal was not under consideration by him, and revenue files this appeal even without uttering a single word about the same. Might be the revenue is only aggrieved by the setting aside of the order against the respondent and not against setting aside of the entire order in original without any appeal. 4.5 As per the facts on record, the officers intercepted one truck on 11.09.2018, which was found to be loaded with Betel Nuts. 4.6 Subsequently, the samples drawn from the betel nuts were shown to two local traders, who opined that betel nuts appeared to be of foreign origin. Samples were....
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....India which shows substantial production of betel nuts in West Bengal, Assam and North Eastern State. In the absence of any positive evidence to establish the foreign origin of the goods and their illegal smuggling into the country, I agree with the Appellate Authority that their confiscation is neither warranted nor justified. 4.10 The order of the Allahabad Bench in case of Maa Gauri Traders (Final Order No.72729/2018 dated 26.11.2018) [2019 (369) ELT 1024 (T-All)] was challenged by the revenue before the Hon'ble Allahabad High Court of in Customs Appeal No.3 of 2019. Disposing of this appeal by order dated 21.08.2019, Hon'ble High Court observed as follows: "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 revenue is not required to prove its case with mathematical precision, but is only re....
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....even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible-it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection". 14. Similar view has been taken by the Hon'ble Apex Court in Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796 : AIR 2008 SC 1749] . 15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent that the CESTAT after considering all the material on record including the orders passed by the authorities below, have given a concurrent finding of fact that the Revenue could not establish the foreign origin of the betel nuts . The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases they produced the market receipts which has not been doubted by the Revenue Authorities themselves at any stage of the proceedings. The report of the AR....
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....nts 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.)." 4.12 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 Research and Development Foundation, Mangalore to show that the confiscated goods/bete....