Custom, Excise & Service Tax Tribunal
Shanti Biswas vs Lucknow Prev on 20 October, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Customs Appeal No.70379 of 2022
(Arising out of Order-in-Appeal Nos.345 & 346-CUS/APPL/LKO/2022 dated
01/06/2022 passed by Commissioner (Appeals) Customs, Central Goods &
Services Tax, Lucknow)
M/s Shanti Biswas, ....Appellant
(Barapath, P.S. Fatasil Ambari,
Sub Division Gauwahati, Kamroor, Assam)
VERSUS
Commissioner of Customs (Preventive), CGST &
Central Excise, Lucknow ....Respondent
(3/194, Vishal Khand-3, Gomti Nagar, Lucknow)
APPEARANCE:
Shri Shubham Agarwal, Advocate for the Appellant
Shri Manish Raj, Authorised Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO.70177/2023
DATE OF HEARING : 20 October, 2023
DATE OF DECISION : 20 October, 2023
SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal Nos.345 &
346-CUS/APPL/LKO/2022 dated 01/06/2022 passed by
Commissioner (Appeals) Customs, Central Goods & Services Tax,
Lucknow. By the impugned order Commissioner (Appeal) has
held as follows:-
"First, I take up the matter with respect to recovery of the
said seized goods which find that Shri Shanti Biswas, the
Appellant No.1 claimed the ownership of the seized betel
nut and Black pepper only and shown no relationship with
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the seized 1315 Kg of poppy seeds. However, the officers
after off loading the foreign origin Betel nuts and foreign
origin Black pepper from SLR No. 05853 of Train No.
15909 (Awadh Assam Express) examined the said seized
goods and found that poppy seeds weighing 1315 Kg (29
bags of 35 Kg and 06 bags of 50 Kg) were also
concealed/hidden among the bags of betel nut. Therefore,
the contention of the appellant that the said poppy seeds
were of another trader doesn't hold good as the way the
same were hidden in the bags of betel nut shows his
malafide intention to smuggle the said prohibited goods
into India. The appellant No. 1 has further taken the plea
that all the goods were covered under E-way bill and the
same were also GST paid and the relevant documents
were also provided to the department which has never
been alleges that such documents are fake or forged. In
this regard, I find that the Adjudicating Authority in para
4.5, 4.6 & 4.7 of the impugned order has discussed all the
issues at length. The contention of appellant that they had
purchased the said Black pepper from M/s Ankita Traders,
Nagaon, Assam also found fake as the proprietor of M / s
Ankita Traders Smt. Anjana Sutradhar in her statement
dated 02.01.2020 recorded under Section 108 of the
Customs Act, 1962 categorically denied the issuance of the
invoice produced by the appellant. Therefore, I find that
the said seized Black pepper was procured clandestinely
through the smuggled route. The appellant also failed to
produce any documentary evidence regarding purchase of
betel nuts from the local market in cash without
maintaining any records which shows his malafide
intention to cover up the smuggled foreign origin betel
nuts. Regarding the authenticity of the testing report of
ARDF challenged by the appellant with relation to its
country of origin, I find in para 4.8 of the impugned order,
the adjudicating authority on the basis of test report dated
17.03.2020 of Arecanut research & development
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Foundation, Mangalore concluded in its finding that the
said gods were of Indonesian origin. I am also of the view
that the said test report is a reliable piece of evidence with
regards to origin of betel nuts as ARDF, Mangalore which is
a reputed Institution in the field of research and
development of betel nut. Thus, the contention of the
appellant No.1 that the said betel nuts were purchased
from the local market in Assam (India) in cash is nothing
but to cover up its country of origin as he failed to produce
any concrete evidence in support of his claim either at the
time of Adjudicating proceedings or at the time of filing
appeal in this office to prove that the said goods are not
smuggled ones. I find the Adjudicating authority has
rightly confiscated the seized 13125 kg of foreign origin
Betel nuts, 2250 Kg of foreign origin Black pepper and
1315 Kg of foreign origin poppy seeds under Section
111(b) of the Customs Act, 1962. Regarding imposition of
penalty upon the Appellant No. 1 under Section 112(b) of
the Customs Act, I find that Shri Shanti Biswas, has
illegally imported poppy seeds, black pepper and betel
nuts in India without any valid legal documents in violation
of the provisions of section 7(1)(c) of the Customs Act,
1962 read with Notification No. 63/94 - C * us (N.T) dated
21.11.1994. Thus, the original adjudicating authority has
correctly penalized the appellant and keeping in mind
overall facts of the case, I find that the quantum of penalty
is just and appropriate and I do not wish to interfere with
that."
2.1 On 04.09.2019, officers of Customs Preventive,
Commissionerate, Lucknow on the basis of information that
foreign origin betel nuts and foreign origin black pepper which
have been smuggled into India are being transported in a leased
Van SLR No.05853 of Train No.15909 (Awadh Assam Express)
reached Charbagh Railway Station, Lucknow.
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2.2 In association with the railway staff inspection of the said
van loaded with goods was done in presence of two independent
witnesses. On inspection they found 192 jute bags of Betel Nut
and 50 bags of black pepper which were of loaded in the train
and taken into existence as unclaimed paper bags. No person
came forward to claim the ownership of the said goods along
with the said black pepper and betel nuts. Certain quantity of
poppy seeds were also found along with these goods. All these
goods were put under seizure. The details of the seized goods
are as follows:-
S.No. Details of the goods Quantity (in Country of Total estimated
and packaging kg) origin market value (in
Rupees)
1 Betel nuts - 176 Jute 13125 kg Foreign 42 ,00,000/-
bags (320 rupees per
(167 bags x
Kilogram)
75 kg each =
12525 kg &
09 bags
weighing
total 600 kg)
2 Black Pepper - 50 2250 kg Foreign 14 ,62,500/-
Plastic bags (each bag of (650 rupees per
45 kg) Kilogram)
3 Poppy seeds in 35 1315 kg (29 Foreign 15,78,000/-
Jute & Plastic bags bags x 35 kg (1200 rupees
each = 1015 per kilogram)
kg & 06 bags
x 50kg each
= 300kg )
Total 72 ,40,500/-
2.2 On 04.11.2019, appellant claimed the ownership of the
above seized betel nuts and black pepper. His statement was
recorded under Section 108 of the Customs Act, 1962 whereby
he stated as follows:-
a) He is the owner of above seized 13125 kg Betel Nut and
2250 kg Black Pepper only and he has no relation with the
above seized 1315 kg Poppy Seeds.
b) The above said betel nut and black pepper had been
booked by him from Guwahati to Delhi through Van No.
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Customs Appeal No.70379 of 2022
05853 of Train No. 15909 (Awadh-Assam with the help of
Shri Khagen Sharma, authorized agent of M/s Khanna
Logistics.
d) The said black pepper had been purchased by him from
M/s Ankita Traders, Nagaon, located in nearby village
e) The said betel nut and black pepper was being sent to
Delhi to himself.
f) The sale and purchase of betel nut and black pepper is
made by him only through cash payment.
g) The trade of said goods is being done in his own name
without having any Firm or Company and he is not
registered with the GST Department.
h) No stock/sale register is being maintained in respect of
above goods.
i) He has sent the above goods through rail for the first
time.
j) He will provide related documents in respect of above
goods to the department by 25.11.2019.
k). In respect of Poppy Seed, he stated that he has not
booked the said goods and Shri Khagen Sharma of M/s
Khanna Logistics could only throw lights on the said issue."
2.3 Against the seizure appellant made request for provisional
release. Vide Order No.13/2019-20 dated 22.11.2019, the
request for provisional release of Black Pepper and Betel Nuts
were rejected. Subsequently, the matter came up before the
Tribunal and Tribunal vide Final Order No.70241 of 2020 dated
28.02.2020 provisionally released the said Black Pepper and
Betel Nuts. Thereafter, competent authority vide provisional
release order dated 13.03.2020 allowed provisional release
against furnishing of a bond of the full value of Betel Nut and
Black Pepper i.e. Rs.56,62,500/- and deposit of cash security of
Rs.11,32,500/-.
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Customs Appeal No.70379 of 2022
2.4 To find country of origin to the said betel nut, samples of
the said Betel Nuts drawn under panchnama dated 05.11.2019,
and the same were sent to Arecanut Research & Development
Foundation, Mangalore for testing under the letter dated
27.02.2020. After testing of the said samples ARDF, Mangalore
vide letter dated 17.03.2020 stated that the said samples of
betel nut seems to be of Indonesian origin.
2.5 A show cause notice dated 19.08.2020 was issued to the
appellant and others, asking them to show cause as to why-
(i) the aforementioned recovered and seized 13125 kg
foreign origin betel nuts valued at Rs. 42,00,000/- (Rupees
Forty-two lakh only) and 2250 kg foreign origin black
pepper valued at Rs. 14,62,500/- (Rupees Fourteen lakh
sixty-two thousand five hundred only), which have been
illegally imported into India, in contravention of Section 7
(1) (c) & 11 of the Customs Act, 1962 read with
Notification No. 63/94-Cus (NT) dated 21.11.1994, should
not be confiscated under Section 111(b) of the Customs
Act, 1962. Since the seized goods i.e. 13125 kg foreign
origin. betel nuts valued at Rs. 42,00,000/- (Rupees Forty-
two lakh only) and 2250 kg foreign origin black pepper
valued at Rs. 14,62,500/- (Rupees Fourteen lakh sixty-
two thousand five hundred only) have been provisionally
released, why redemption fine should not be imposed on
him, under provision of section 125 (1) & (3) of the
Customs Act, 1962. Further, the party has submitted Cash
security for Rs. 11,32,500/- (Rupees Eleven lakh thirty-two
thousand five hundred only) with bond of full seizure value
of foreign origin betel nuts and black pepper of Rs.
56,62,500/- (Rupees Fifty-six lakh sixty-two thousand five
hundred only) in compliance of the orders of the Additional
Commissioner, Customs (Prev.) Commissionerate,
Lucknow dated 13.03.2020. Therefore, it may be explained
as to why the redemption fine and penalty including duty,
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should not be recovered from the said Cash security under
section 125 (1) & (3) of the Customs Act, 1962.
(ii) the aforementioned recovered and seized 1315 kg of
poppy seeds valued at Rs.. 15,78,000/- (Rupees Fifteen
lakh seventy-eight thousand only), should not be
confiscated under Section 111(b) of the Customs Act,
1962.
(iii) penalty should not be imposed upon Shri Shanti
Biswas under Section 112(b) of the Customs Act, 1962 for
illegal import of foreign origin black nut, black pepper &
poppy seeds.
(iv) penalty should not be imposed upon Shri Akshay
Khanna, the legal owner of M/s Khanna Logistics, under
Section 112(b) of the Customs Act, 1962 for transportation
of illegally imported foreign origin betel nuts, black pepper
& poppy seeds.
(v) penalty should not be imposed upon "To whomsoever it
may concern" under Section 112(b) of the Customs Act,
1962 for illegal import of foreign origin betel nuts, black
pepper & poppy seeds and transportation of these goods."
2.6 This show cause notice was adjudicated by the Original
Authority vide Order-in-Original No.31/JC/2021 dated
04.08.2021, wherein following has been held:-
ORDER
1. I order for absolute confiscation of the seized poppy seeds weighing 1315 kg valued at Rs. 15,78,000/- (Rupees Fifteen lakh seventy-eight thousand only) under Section 111(b) of the Customs Act, 1962.
2. I order for confiscation of the seized 13125 kg foreign origin betel nuts valued at Rs. 42,00,000/- (Rupees Forty-two lakh only) and 2250 kg foreign origin black pepper valued at Rs. 14,62,500/- (Rupees Fourteen lakh sixty-two thousand five hundred only) under Section 111(b) of the Customs Act, 1962. However, I 8 Customs Appeal No.70379 of 2022 impose redemption fine of Rs 11,32,500/- (Rupees Eleven Lakh Thirty Two Thousand Five Hundred only) in lieu of said confiscation as envisaged under Section 125(1) of the Customs Act, 1962 and the same should be paid within the time as stipulated under Section 125(3) of the Customs Act, 1962. In addition to redemption fine, goods shall also be liable to Customs duty leviable thereon. Since the goods have been provisionally released to the noticee on furnishing of full bond value and cash security, the cash security of Rs 11,32,500/- deposited by the noticee at the time of provisional release of the goods can be appropriated against redemption fine imposed as above.
3. I impose penalty of Rs 5,00,000/- (Rupees Five Lakh only) upon noticee no.1 Shri Shanti Biswas under
Section 112(b) of the Customs Act, 1962.
4. I Impose penalty of Rs 3,00,000/- (Rupees Three Lakh only) upon noticee no.2 Shri Akshay Khanna owner of M/s Khanna Logistics, Delhi under Section 112(b) of the Customs Act, 1962.
5. I reserve the right to impose penalty on "To whomsoever it may concern" under Section 112 of the Customs Act, 1962."
2.7 Appeal against the said order was filed by the appellant and Shri Akshay Khanna legal owner of M/s Khanna Logistics, Delhi.
2.8 Both these appeals were disposed of by the Commissioner (Appeals) by the impugned order referred in para-1 above. Aggrieved appellant Mr. Shanti Biswas has filed present appeal. However, I do not find any appeal against the impugned order filed by Shri Akshay Khanna legal owner of M/s Khanna Logistics. I am only concern with the appeal of the present appellant.
3.1 I have heard Shri Shubham Agarwal learned Advocate appearing for the appellant and Shri Manish Raj learned Authorised Representative appearing for the revenue.
9Customs Appeal No.70379 of 2022 3.2 Learned Counsel for the appellant submits that the issue involved in the present appeal is no longer res-integra:
Tribunal has in the case of Maa Guari Traders [final Order No 72729/2018 dated 26.11.2018] has categorically held that no reliance for the establishing the smuggled nature of betel nuts can be placed on the opinion of Arecanut Research & development Foundation, Mangalore. This order has been upheld by the Hon'ble Jurisdictional High Court and has been followed constantly by the tribunal. The seizure made in the case is course of local transportation of the goods within the country and no evidence has been produced by the department to establish that these goods were of smuggled nature. Tribunal has in its order dated 11.12.2019 while dismissing the revenue appeal against the order of Commissioner (Appeal) allowing the provisional release of the goods, categorically recorded the finding that no evidence has been produced to establish the smuggled nature of these goods.
3.3 Learned Authorized Representative appearing for the Revenue re-iterates the finding recorded in the impugned Order-
in-Appeal.
4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments.
4.2 At the outset it is observed that the impugned goods i.e. Betel Nuts and Black Pepper are not the goods specified or notified under Section 123 of the Customs Act, 1962. Thus the burden to prove the smuggled nature of these goods lies on the Custom Authorities as held by the Tribunal in the case of Baboo Banik [2004 (174) E.L.T. 205 (Tri.- Kolkata)]. Tribunal in the case of Bijoy Kumar Lohia [2006 (196) E.L.T. 215 (Tri.-Kolkata)] has held that the local trade opinion cannot take the place of the legal evidence.. No case has been made out for the seizure and confiscation of the Black Pepper or Betel Nuts is made out as no 10 Customs Appeal No.70379 of 2022 evidence has been placed on record to establish the foreign origin of these goods, or of illegal importation of the same. These goods were seized when they were being transported within the country via SLR No. 05853 of Train No. 15909 (Awadh Assam Express) which do not cross any international border from the place of origin to destination.
4.3 It is interesting to note in the present case that against the order of not allowing the provisional release of the betel nuts and black pepper, appellant filed Writ Tax No.134 of 2020 before Hon'ble High Court wherein while disposing of writ petition Hon'ble High Court vide order dated 18.02.2020, following has been held:-
"Even though it is palpably evident that the conduct of the customs authorities actually dealing with the matter is suspect, nevertheless, since a statutory appeal before the learned Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been filed (only after filing of this writ petition) and considering the fact that the matter is now before the learned CESTAT, we refrain from passing any order in the instant writ petition and dispose of the matter with a request to the learned CESTAT to try to dispose of the statutory appeal at an early date."
4.4 On the other hand revenue has filed appeal before this Tribunal and the Tribunal vide Final Order No.70241 of 2020 while upholding the Order-in-Appeal No.584-Cus/APPL/LKO/2019 dated 11.12.2019, following has been held:-
"4. With the consent of both the sides appeal itself was taken up for hearing. From perusal of appeal records, I note that revenue was aggrieved by the order of learned Commissioner (Appeals) through which he has allowed provisional release of Betel Nuts and Black Pepper. After hearing the learned A.R. appearing for the revenue and on perusal of record, I could not find any evidence to establish that the goods which were moved within 11 Customs Appeal No.70379 of 2022 the country, were smuggled in the country and therefore, I hold that it was high handedness on the part of revenue to have detained the said goods not released the same inspite of the order of learned Commissioner (Appeals). I dismissed the appeal filed by revenue. I further direct revenue to release Black Pepper and Betel Nuts to the respondents by 15 March, 2020. Misc. Application is rejected as in-fructuous."
4.5 In my view the Tribunal has in the above order given a clear finding to the effect that there was no evidence to establish that the goods which were moved within the country were smuggled in the country and therefore has held that action on the part of the revenue to detain the said goods and not released the same in spite of the order of Commissioner (Appeals) is an action of high handedness. It was directed that the black pepper and Betel nuts being released to the respondent immediately. When there was clear-cut finding of the Tribunal that there existed no evidence that black pepper and betel nuts were smuggled into the country. The entire proceedings subsequently on issuance of show cause notice and adjudication thereof is contrary to the principles of judicial discipline.
4.6 In case of Maa Gauri Traders [2019 (369) ELT 1024 (T- All)] Allahabad Bench has held as follows:
"We also note that the reliance on the opinion of Arecanut Research & Development Foundation (ARDF), Manglore 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 we 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 12 Customs Appeal No.70379 of 2022 when it is proved that betel nuts has been illegally smuggled into the country. Revenue has not produced any evidence to show that the betel nuts in question were smuggled into India. The respondent had also brought on record a survey report on the cultivation of areca nuts in India issued by the Directorate of Arecanut and Spices Development, Ministry of Agriculture, Government of India which shows that 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, we agree with the Appellate Authority that their confiscation is neither warranted nor justified. As such, we find no infirmity in the impugned order of the Commissioner (Appeals)."
4.7 The order of the Allahabad Bench 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 as reported at [2019 (368) E.L.T. 913 (All.)] 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 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 13 Customs Appeal No.70379 of 2022 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 "question of law". In paragraph 65, citing the judgment in the case of Suwalal Chhogalal v. CIT [(1949) 17 ITR 269 (Nag)], the Court has held as under:
"... A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material."
13. Further in Sewalal Chhogalal (supra) the Court also held in paragraph 67 and 68 that:-
"67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh[(1992) 1 SCC 647 : AIR 1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra Kumar v. Firm Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] , Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285 : AIR 2000 SC 1261] , Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] and Dinesh Kumar v. Yusuf Ali[(2010) 12 SCC 740 : (2010) 4 SCC (Civ) 738] .]
68. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 :
AIR 2002 SC 1428] this Court held that (SCC p. 638, para 6) it is permissible to interfere even on question of fact but it may be only in "very 14 Customs Appeal No.70379 of 2022 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 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 probability that a prudent man, on its basis, could believe that the betel nuts were of foreign origin."
15Customs Appeal No.70379 of 2022 4.8 Decision of Allahabad Bench in case of Maa Gauri Traders, was relied upon by the Kolkata Bench in case of Laltanpuii [2022 (382) E.L.T. 716 (Tri. - Kolkata)]. The Bench stated as follows:
"11. Revenue relies heavily on the certificate issued by Arecanut Research and Development Foundation (ARDF), Mangalore. We find that various fora have held that the institute is not accredited and hence, the report is not reliable. It was held by High Court of Patna 2020 (371) E.L.T. 353 (Pat.) that in absence of any material to show ARDF Mangalore is accredited laboratory by competent authority under Act and Rules, it's report cannot have consequence of fastening of any legal liability and 'No legal liability can flow from report of such an institution', hence authorities not justified in again relying thereon to justify seizure in question. Tribunal, in the case of M/s. Maa Gauri Traders 2019 (369) E.L.T. 1024 (Tri - All.), held that since betel nuts are also produced in India, in absence of any evidence that confiscated goods were illegally smuggled into India, same cannot be confiscated merely based on test report of an organization which later on also admitted that country of origin cannot be determined through test in the laboratory. We also find that Learned Commissioner (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.)."
4.9 Affirming this order of Kolkata Bench, Hon'ble Meghalaya High Court as reported at [2022 (382) ELT 592 (Meghalaya)] held as follows:
16Customs Appeal No.70379 of 2022 "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/betel nuts are of foreign origin. However, the Tribunal refused to consider this certificate on the ground that the said Institution is not accredited and hence the report was not relied on. The Tribunal in this regard relied on the decision of the Patna High Court reported in 2020 (371) E.L.T. 353 (Patna).
5. After hearing the Learned Counsel appearing for the respective parties and after going through the impugned judgment and order, we find no error in the findings given by the Tribunal. The said findings, in our opinion are supported by reasons and therefore, we are not inclined to interfere in this appeal. Appeal has no merit and is accordingly dismissed."
4.10 SLP filed by the revenue against this order of Hon'ble High Court of Meghalaya has been dismissed by the Hon'ble Supreme Court as reported at [2022 (382) ELT 588 (SC)].
4.11 I do not find any merits in the impugned order of Commissioner (Appeals). I want to make it clear that this order pertains only to the appeal before me.
5.1 Appeal is allowed.
(Operative part of the order pronounced in open court) Sd/-
(SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp