Custom, Excise & Service Tax Tribunal
Krishna Das Proprietor vs Commissioner Of Customs on 17 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal No. 3916, 3917 & 3918 of 2012- Cus[SM]
[Arising out of Order-In-Appeal No. 277 to 279/CEus/ Appl/KNP/2012 dated 31.08.2011 passed by Commissioner of Customs (Appeals ), Kanpur ]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
Krishna Das Proprietor Appellants
of M/s. Keon Trading Company
M/s. Shree Global Cargo
Krishna Das
Vs.
Commissioner of Customs Respondent
Lucknow Appearance:
Ms. Reena Rawat, Advocate for the Appellants Shri B B Sharma, DR for the Respondent Date of Hearing /decision: 17.1.2014 ORDER NO. FO/ A 50266-50268 /2014-Cus(SM) Per Archana Wadhwa:
All three appeals are being disposed of by a common order as they arise out of same impugned order passed by the lower authorities.
2. As per facts on record, DRI officers offloaded 86 bags of third country origin betel nuts from a train coming from Guwahati. It is seen that there were total 285 bags of betel nut booked by M/s. Keon Trading Company which is a proprietary unit of Shri Krishna Das. The said consignment was booked through railway lease holder M/s. Shree Global Cargo where Shri Krishna Das is also one of the partner. The consignee of the goods was shown as one M/s. Ganapati Traders.
3. A sample of betel nut was drawn and an expert opinion of one Shri Anand Aggrawal of M/s. Wazirganj Ward Upbhogata Sahakari Samiti Ltd. was obtained. As per the opinion of Shri Anand Agarwal, betel nuts were split and coloured to camouflage their origin, but out of his experience he opined that betel nuts were not of Indian or Nepali origin and same appeared to be of Indonesian, Mayanmarese or Bangladeshi origin. On reasonable belief that same were smuggled, DRI officers seized the 86 bags of betel nuts totaled valued at Rs. 3,61.800/- .
4. M/s. Kepon Tradinig Company claimed the ownership of the said betel nuts and submitted that they were purchased by them from Assam against cash and were being transported from Guwahati to Delhi through railways authorised person. They also produced the Challan form M issued by Assam State Agriculture Marketing Board . to establish the procurement of betel nut. However, summons issued to the consignee of the goods i.e. M/s. Ganpati Traders were received back undelivered with the postal authorities remarks left without address.
5. On the above basis, proceedings were initiated against the appellants proposing confiscation of betel nuts and imposition of penalties. In terms of order passed by Additional Commissioner., the said betel nuts were confiscated with an option to the appellant to redeem the same on payment of redemption fine of Rs. one lakh on the finding that they were smuggled. In addition, penalties of Rs.50,000/- each were imposed upon M/s. Shree Global Cargo, Shri Krishna Das, partner of M/s. Shree Global Cargo and Shri Krishna Das, proprietor of M/s. Keon Trading Company. Appeal against the order of Commissioner did not succeed before Commissioner (Appeals). Hence, the present appeals.
6. It is seen that total consignment of 285 bags of betel nuts were booked by M/s. Keon Trading Company from Guwahati to Delhi. The said consignment was intercepted by DRI Officers at Kanpur on 23.9.2010. Surprisingly only 86 bags were offloaded and were subsequently seized and confiscated. As per the appellants, the balance 199 bags, though were of the same consignment were examined by the DRI at the Delhi Railway station arrived at Delhi in the same train and nothing objectionable were found and handed over to the authorised representative of the M;/s. Keon Trading Company.
In any case, and in any view of the matter, it is seen that foreign origin of betel nut stand established by the Revenue on the basis of so called expert opinion of Shri Anand Agarwal . The said person has given his opinion about the foreign origin of the goods on the basis of visual examination of the betel nuts. However, no final opinion as regards the country of origin has been given by him. He has simply stated that betel nut appeared to be of Indonesian, Mayanmarese or Bangladeshi origin. Tribunal had an occasion to deal with an identical issue in various matters and has observed that opinion of a local shopkeeper cannot be held to be an expert opinion and does not prove the foreign origin of the goods, beyond doubt. Reference in this regard can be made to the Tribunals decision in Ram Nath Sah vs. CCE Patna [2000 (115) ELT 182 (Tri)] and Kamala Devi Baid vs. CC Patna [2001 (138) ELT 358 (Tri-Kol)] and Dinanath Maurya vs. CC Lucknow [2001 [2001 (131) ELT 203 (Tri-Kol)] .
7. Apart from so called expert opinion of Shri Anand Agarwal, there is virtually no evidence on record to reflect that betel nut in question were of foreign origin. The appellants have taken a categorical stand that betel nuts are grown in abundance in Jalpaiguri and Coochbehar in West Bengal and in the entire States of Assam, Arunachal Pradesh, Meghalaya, Tripura, Manipur etc. Admittedly the consignment was booked from Guwahati to Delhi. The appellants have rightly contended that distance between Guwahati to Delhi is around 2000 kms whereas distance from Nepal to Delhi I 1500 kms. As such nobody would smuggle the goods from Nepal boarder to Guwahati which is around 900 kms away and then transport the goods from Guwahati to Delhi after crossing state barriers at places in between.
8. Apart from the fact that there is no evidence on record to show that the foreign origin of the goods, I also note that the betel nuts are neither notified under Chapter IV of the Customs Act nor under section 123 of the Act. As such, the onus to prove that the same have been smuggled lies very heavily upon the Revenue and is required to be discharged by producing sufficient positive and tangible evidence. The Revenue in the present case apart from relying upon so called expert opinion as regards the foreign origin of the goods have not produced any evidence to establish the smuggled nature of the goods. It is not the case of the Revenue that betel nuts of foreign origin are not legally imported into India and the same are not available in the open market. As such, in the absence of any evidence to show that betel nuts in question were actually smuggled, the confiscation of the same cannot be upheld.
9. Further, I find that appellants have produced the Challan form M issued by Assam State Agriculture Marketing Board showing the purchase of betel nuts in question which stand discarded by the Commissioner (Appeals) on the ground that appellants have not maintained any records and have intentionally cheated fake documents to cover the consignment in question as there is doubts in dates of issuance of the said documents inasmuch as one document is issued on 9.9.2010 whereas the other form is issued on 16.9.2010. I find that the date of seizure was 23.9.2010 and as such both the M forms are prior to the date of seizure. Merely because the two different consignments of betel nut were purchased on two different dates, prior to the transportation of the same. Will not make such documents as fake. Accordingly, he has held that purchase documents have been created / procured to give colour of genuineness to their illegal act and to mislead the department. No verification of the said documents have been made by the department from the Assam State Agriculture Marketing Board. Admittedly, betel nuts do not carry any identification marks so as to relate the consignment to be document produced by the appellants. As such, in the absence of any inquiry made by the Revenue from the issuing authority, Assam State Agriculture Marketing Board, rejection of the same on the sole ground that appellants have not maintained any accounts and held the said documents to be fake, is not proper on the part of the Commissioner (Appeals).
10. As such, in the absence of any evidence to first establish the foreign origin of the goods and secondly the smuggled nature of betel nuts and thirdly the rejection of purchase documents by the lower authorities, I find no justifiable reason to confiscate the betel nut in question or to impose penalties on the appellants. Accordingly, the impugned order are set aside and all the appeals are allowed with consequential relief to the appellants.
(operative part of the order pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
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