TaxTMI 
TaxTMI 
2023 (12) TMI 189
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....ventive intercepted a truck No.UP-71 T 8789 on 23.08.2017 at Tenua, Gorakhpur. The truck was loaded with 19810 Kgs of Betel nuts. The driver of the said truck Shri Salauddin produced an invoice No.05/GST dated 20.08.2017, Money Receipt regulated Market Committee (Book No.164735, Receipt No.Q236718) Biliti C.No.049X283 and transport related papers of the truck. 2.2 Market opinion regarding origin of betel nut was obtained from M/s Cheap Traders, Gorakhpur, M/s Sai Ram Traders, Sahabganj, Gorakhpur and who stated that the betel nuts were of foreign origin. Shri Salauddin, driver of the said vehicle, in his statement dated 23.08.2017 that the impugned goods were loaded at Dhupgudi, Jalpaigudi, west Bengal. 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 vide detention memo dated 23.08.2017. 2.4 Samples were drawn from the consignment and sent to Arecanut Research and Development Foundation, Mangalore (ARDF) for determination of the origin of detained bete....
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....Order. I also order that if the legal owner of the goods do not deposit the above ordered Redemption Fine along with applicable 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 Bank Guarantee of Rs.07,50,000/- and Security Document of immovable property equal to the value of Rs.22,00,000/- given at the time of Provisional release of the above goods and remaining amount be recovered from other resources of the consignor/petitioner. 2. I order to confiscate the seized vehicle no.UP-71/T-8789 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. 1,75,000/- (One Lakh Seventy Five Thousand Rupees only.) as Redemption Fine. Since, the above seized vehicle no UP-71/T-8789 was provisionally released in favor of the vehicle owner after the execution of a cash security of Rs.2,00,000/- and the Indemnity Bond equal to the seizure value of the vehicle Rs.30,00,000/-. Therefore, I order to adjust in favor of the Customs Department Rs.1,75,000/- from t....
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....d order referred in para-1 above. 2.10 Being aggrieved with the impugned order in respect of the respondent, Revenue has filed the present appeal. 3.1 Along with the appeal revenue had filed a stay application and the respondent had filed a miscellaneous application seeking early hearing of the appeal, which were disposed of by the bench vide Miscellaneous Order No.70067-70068/2023 dated 14th September, 2023, observing as follows:- "3. For the reasons as stated in the miscellaneous application specifically the ground that the issue is in respect of perishable goods which are under seizure/ confiscation, early hearing is allowed 3. As I have allowed the application for early hearing I do not find any merits in the Stay Application filed by the Revenue, which in any case is not maintainable in terms of Rule 28A of the CESTAT, Procedure Rules, 1982, same is dismissed." 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 S....
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.... Government of Kerala, a major betel nut producing state, has stated that it is not possible to determine the place of origin of Betel nut through test in a Laboratory. Thus, the report of ARDF can only be treated as an opinion and not a scientific test report regarding the country of origin. Further, even if it is presumed that the impugned goods are of foreign origin, there is no evidence that the same was improperly imported into India. As betel nut is not prohibited for import under the EXIM Policy, it is freely imported and traded in the country. Thus, unless improper importation of the same is proved with positive evidence there is no ground for confiscation of the same under section 111(b) of the said Act which provides for confiscation of any goods imported by land or inland water through any route other than a route specified in a notification issued under section 7(c) of the said Act. 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. 12. Likewise, the trade opinions given by the local traders are just opinion and they cannot be g....
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....loaded with Betel Nuts. On inquiry, the driver of the truck produced the tax invoices dated 20.08.2017. 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 also sent to the Arecanut Research & Development Foundation (ARDF), Mangalore, which reported the same to be of "foreign" origin. 4.7 On the above basis, proceedings were initiated against the respondent for confiscation of betel nuts on the allegation that the same were of foreign origin and appeared to have been illegally smuggled into India. The notice also proposed the confiscation of vehicle in terms of Section 115(2) of the Customs Act. The said proceedings resulted into an order passed by the Original Adjudicating Authority confiscating the seized betel nuts 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 ....
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.... 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 required to establish such a degree of probability that a prudent man may, on that basis, believe of existence of facts in issue, and therefore submitted that the RTI reply is general in nature while the specific report by the Arecanut Research and Development Foundation is that this report is given by specialized agency and therefore should have been relied upon by the authorities below. 11. The only question raised in the present appeal is with regard to the origin of the betel nuts, as to whether they are of foreign origin, or they have been purchased locally as asserted by the respondents before the authorities below. In our considered opinion the issue regarding to origin of the betel nuts, would be purely a question of fact. 12. In the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 the Apex Court has considered as to what would be a "question of fact" as contra-distinguished from a "qu....
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....he 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 ARDF has also been held to be not reliable in as much as it could not be shown with any degree of certainty that the origin of the betel nuts could be established by testing in a laboratory, as is clear by the answer to the RTI query given by Directorate of Arecanut And Spice Development, Ministry of Agriculture and Farmers Welfare, Government of Kerala. 16. Further it is relevant to observe that the Revenue did not argue or place any material to indicate that the betel nuts in question were smuggled into India, even if, for a moment, it is assumed that they were of foreign origin, in order to sustain the order of confiscation and penalty. 17. Considering the aforesaid factual matrix, the judgment of the Hon'ble Apex Court in the case of Collector of Customs Vs D. Bhoormull (Supra) would also not be of any assistance to the Revenue, in as much as, they have failed to establish with any degree of prob....