TaxTMI 
TaxTMI 
2006 (5) TMI 92
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....ns bearing nos. B-10/99 and B-11/99 both dated 10-7-99. From the challan no. B-11/99 it was revealed that another truck loaded with 195 bags of betel nuts was also coming along the same route and when the second truck also arrived there, it was intercepted by the Customs Officers and the drivers stated that the trucks were loaded with betel nuts at Dhupguri and both the trucks were consigned for Erode at Tamil Nadu. 3.From the drivers it was learnt that one Sri Surinder Kumar Oswal of Dhupguri was the owner of the goods while the consignor was one Sri Dungarmal Mohata, proprietor of M/s. Shyam Traders of Dhupguri as it was revealed from the road challans. 4.Both the trucks were then brought to the Customs Office where it was found that the truck bearing no. TN-28E/7597 was loaded with 150 bags of betel nuts weighing 10762 Kgs. and the truck bearing no. TN-28D/9019 was loaded with 195 bags of betel nuts weighing 15,600 Kgs. as against 8800 Kgs. and 15600 Kgs. mentioned in the road challans. At the time of unloading, the Customs Officers noted that some of the bags were having inscription "Biratnagar, Nepal, Transit to Calcutta to Nepal". 5.The trucks and bags of betel nuts ....
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....ity of betel nuts to M/s. Shyam Traders on few occasions against payment of cash. They further stated that they procured the said betel nuts from hawkers who brought those betel nuts from Nepal where such type of betel nuts are grown in abundance. The particular variety of betel nuts which are on heavy demand in the market are known as 'Rotha Supari' and they disclosed that, these variety of betel nuts are not grown in India. 10.To ascertain the origin and quantity of the betel nuts under seizure samples of the same were shown to some local dealers of betel nuts of Berhampore and one Ashok Kumar Saha, a general merchant of Khagra, Murshidabad on 15-7-99 opined that the quantity of betel nuts shown to him are not produced in Assam or in any place of Dhupguri and these variety of betel nuts are available in Nepal only and are used for manufacture of 'Panmasala' and 'Gutkha' and the betel nuts of Indian origin are not used in the manufacture of 'Panmasala' and 'Gutkha'. 11.Sri Dungarmal Mohata and Sri Surendra Kumar Oswal in a joint petition dated 10-9-99 to the Commissioner of Customs (Preventive) stated that they were proprietors of M/s. Shyam Traders and M/s. Jyoti Trading Co....
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....n Sri N. Chandran and Rs. 50,000/- on Mr. Surendra Oswal. 17.Being aggrieved by the order of the Commissioner of Customs (Preventive), West Bengal, Calcutta the appellants preferred appeal to the learned Tribunal and the learned Tribunal by the order dated 10-9-01 set aside the order of Commissioner of Customs and observed that there was no justification for confiscation of the betel nuts as the revenue failed to discharge the burden placed on it. The Tribunal also set aside the order of confiscation of the vehicles and imposing of personal penalties upon the persons mentioned above. 18.The Revenue thereafter being dissatisfied with the order of the Tribunal has moved this Court under Section 130A of the Customs Act by this application for derision on the questions of law which are mentioned below :- (1) When the trade opinion was explicit regarding foreign origin of the impugned goods/betelnuts and when the vendors who sold the betelnuts to the appellants clearly admitted that the goods are procured from hawkers bringing the said goods from Nepal and the impugned goods were recovered/found in bags some of which were printed with the marks "Biratnagar Nepal", the legal que....
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....law in this respect. 21.Mr. Pradip Kumar Das, the learned Advocate appearing for the respondent submitted that betel nuts are grown in the Districts of Jalpaiguri and Coochbehar in West Bengal and in the entire North Eastern Indian States in abundance. The seized betel nuts were grown in India and were not of foreign origin. Dhupguri is a famous market for betel nuts and the respondent is a dealer of betel nuts in Dhupguri. Receiving orders from Erode in Tamil Nadu he despatched the bags of betel nuts in two trucks with valid challans. This Court in Commissioner of Customs (Preventive), West Bengal, Calcutta v. Sudhir Saha reported in 2004(172) E.L.T. 26(Cal) held that betel nut is not a notified goods under Section 123 of the Customs Act, 1962. The burden of proof in such a case of non-notified item cannot be shifted on the person from whom such goods were seized. As a non-notified item burden is on the department to prove the smuggled nature of goods. 22.Mr. Saha submitted that in that reported case also the officers of Customs seized betel nuts and a point was raised before this Court for consideration as to whether under Section 123 of the Customs Act relating to non-noti....
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....discharge the initial burden of proof which lies on them to establish that the betel nuts were smuggled into India from Nepal. 25.After considering the entire facts and circumstances we are of the view that in the instant case the trade opinion cannot form the basis or foundation to establish the fact that, the seized betel nuts were either of smuggled nature or were of foreign origin and smuggled into India particularly in Dhupguri of Jalpaiguri from Nepal. Before the Commissioner of Customs the respondent before us wanted to cross-examine the alleged trade experts namely, Ashok Sana, Bhabesh Ghosh, Nepal Ghosh and Gopal Sana. It appears from the order of the Commissioner of Customs (Preventive) that letters were sent to the said four persons whose statements were recorded under Section 108 of the Customs Act. It is evident that the said letters were not served and were returned back undelivered with postal remark that 'no such person in the given address and hence returned'. It is crystal clear that the said four persons whose statements were allegedly recorded by Customs Officers under Section 108 of the Customs Act did not appear before the Commissioner of Customs (Preventiv....