Customs, Excise and Gold Tribunal - Calcutta
Dungarmal Mohta, Jyoti Trading Co., B. ... vs Commissioner Of Customs (Preventive), ... on 10 September, 2001
Equivalent citations: 2002(140)ELT256(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. All the five appeals are being disposed of by a common order as they arise out of the same impugned order of Commissioner, Customs, Calcutta vide which he has confiscated betel-nuts valued at Rs. 34.36 lac (approx.) with an option to the owner to redeem the same on payment of redemption fine of Rs. 3.50 lac. He has also confiscated two vehicles used for transportation of the betel-nuts in question with an option to the owner of the truck to redeem the same on payment of redemption fine of Rs. 20,000/- for each truck. In addition, following penalties have been imposed upon various persons:
Name of the Parties Penalties S/Shri 1. Dungarmal Mohta Rs. 1,00,000/- 2. M/s Jyoti Trading Co. Rs. 50,000/- 3. Shri B. Muthuswamy Rs. 50,000/- 4. N. Chandran Rs. 50,000/- 5. M/s Venktessa Road Rs. 75,000/- Carrier
2. Briefly stated the facts of the case are that on 14.7.99 the Customs Officers intercepted one truck and asked for the documents. The truck driver of the said truck produced two road challans. From the said road challans it was seen that 125 bags of betel-nuts were loaded in the intercepted truck and 195 bags of betel-nuts were loaded in another truck which was following the intercepted truck. The officers awaited the second truck to arrive. The verifications of both the trucks revealed that the first truck was loaded with 150 bags of betel-nuts as against 125 bags shown in the road challans and the second truck was loaded with 195 bags, as reflected in the road challans. Inasmuch as the officers entertained a reasonable belief that the goods were imported into India from Nepal through unauthorised route rendering the same liable to confiscation, they seized the betel-nuts along with vehicles in question.
2.1 During post seizure period investigations were made and statements of the driver and Khalasi and the owner of the goods Shri Dungarmal Mohta, proprietor of one M/s Shyam Traders were recorded. Shri Dungarmal Mohta in his statement recorded during investigation submitted that he was a partner of registered firm with effect from 1.6.99. He used to purchase betel-nuts from different persons and traders against cash and credit. In the said statement he named various persons from whom he had purchased betel-nuts in question. He admitted that the excess polybags were loaded in the first truck on account of lack of proper supervision. As regards inscriptions on the gunny bags with markings "Biratnagar Nepal, transit to Calcutta to Nepal", found by the Customs Officers at the time of unloading of the goods he stated that he was not aware of any such inscription. He also deposed that the goods were of Indian origin and he used to run the business in cash.
2.2. As a follow-up action the Customs Officers made enquiries from the various persons named by Shri Dungarmal Mohta as the seller of the betel-nuts. All these persons in their statements recorded before the officers admitted having sold betel-nuts to M/s Shyam Traders. They also disclosed that the betel-nuts are normally brought by the hawkers from Nepal where they are abundantly available. The officers also showed the betel-nuts to the local dealers and obtained their opinion to the effect that betel-nuts were of foreign origin. During the pendency of the adjudication, betel-nuts in question were released provisionally to Shri Dungarmal Mohta on execution of bond.
2.3. Based upon the above facts Show-cause Notices were issued against them proposing confiscation of betel-nuts and trucks and imposition of personal penalties upon them. The said Show-cause Notices culminated into impugned order passed by the Commissioner of Customs.
3. Shri B.N. Chattopadhaya, learned Consultant appearing for the appellants submits that the Adjudicating Authority has confiscated the betel-nuts in question and has imposed penalties on various persons on the finding that betel-nuts were of foreign origin and were smuggled from Nepal. He has relied upon the fact that some of the seized bags carried inscription "Biratnagar Nepal, transit to Calcutta to Nepal". In this connection he draws my attention to the inventory of the goods seized by the Customs Officers and submitted that by visual examination it can be made out that there is an interpolation in the seizure memo. The wording "some of the bags in the truck No. 9019 marked with words 'Biratnagar Nepal, to transit to Calcutta to Nepal' have been written subsequently. He submits that these wordings were not there at the time of preparation of seizure memo. This fact was brought to the notice of the Adjudicating authority but he has not considered the same. He also submits that if the goods in question have, in fact, been imported from Nepal, the wordings "Biratnagar Nepal" would not have been written in Hindi language. He also submits that seizure memo only indicates - "some of the bags" having such inscription and the numbers of the bags have not been mentioned in the seizure memo. He further submits that if the bags in question were having such inscription, the Revenue would not have released the goods provisionally to the appellant along with the bags. All these factors, points out by learned Consultant, make it evident on the face of it that the said wordings have been introduced in the seizure memo only to strengthen the case of the Revenue. He further submits that betel-nuts are non-notified items u/s 123 of the Customs Act and before holding the same to be of smuggled character, their foreign origin is required to be established by the Revenue. The goods have been held to be of foreign origin based upon the trade opinion of some local dealers. He submits that Tribunal in a number of cases has held that such trade opinion cannot be made the basis for concluding the foreign origin of the goods. In this connection he places reliance upon the Tribunal's decisions reported in 2001 (42) RLT #) % (T) and 2000 (115) ELT 182.
3.1. He also submits that being non-notified items the onus to prove that the goods have actually been smuggled into India from Nepal lies very heavily upon the Revenue. There is nothing in the present case reflection upon such evidence. Shri Dungarmal Mohta in his statement claimed the purchase of the goods from various persons, who have also corroborated his version. The general observations made by the seller of the goods show such type of betel-nuts come from Nepal through hawkers cannot reflect upon the smuggled character of the betel-nuts.
4. I have also heard Shri D.K. Bhowmik, learned JDR appearing for the Revenue who reiterated the findings of the learned Commissioner and submitted that there is ample circumstantial evidence to show that the betel-nuts were of foreign origin.
5. I have considered the submissions made form both sides and have gone through the impugned order. As argued by the learned Consultant, I find from the seizure memo that the wordings - "Some of the bags in truck No. 9019 marked with words " Biratnagar Nepal, transit to Calcutta to Nepal", have been written subsequently by giving an asterisk mark. There is also force in the learned Consultant's submission that if the goods have been actually smuggled from Nepal the wordings " Biratnagar Nepal" would not have been written in Hindi. Further the exact number of bags having the inscription has not been disclosed in the seizure memo. All these gives rise to doubt that the said wordings have been interpolated in the seizure memo.
6. I also find force in the appellant's statement that mere trade opinion of the local dealers can not reflect upon the foreign origin of the goods especially when the betel-nuts are grown in abundance in North East area of the country. The Tribunal in a number of cases involving betel-nuts has held that such trade opinion can not be equated with expert opinion so as to rely upon the same. I further note that the betel-nuts are non-notified items and the onus to show that the same are smuggled is upon the Revenue, which is required to be discharged by production of positive evidence. In the present case all the seller of the betel-nuts have agreed to have sold the goods to Shri Dungarmal Mohta. As such I find that the Revenue has not been able to discharge the burden placed upon them. Accordingly I find no justification for confiscation of the betel-nuts, all the vehicles carrying the said betel-nuts and for imposition personal penalties upon various persons. Accordingly all the appeals are allowed with consequential relief to the appellants.
(Pronounced)