Customs, Excise and Gold Tribunal - Calcutta
Laxmi Narayan Sharma vs Commissioner Of Customs, Patna on 9 January, 2002
Equivalent citations: 2002(142)ELT74(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. All the three appeals are being disposed of by a common Order, as they arise out of the same impugned Order of Commissioner of Customs, Patna, vide which he has absolutely confiscated 301 gunny bags of betel nuts under the provisions of Section 111(d) of the Customs Act, 1962. He has, further, confiscated the truck used for carrying the betel nuts in question with an option to the owner to redeem the same on payment of fine amounting to Rs. 1.00 lakh (Rupees one lakh). Further, different penalties have been imposed upon the appellants.
2. As per the facts on record; the truck in question was intercepted by the Preventive Officers on 7-10-2000 and was found to be loaded with betel nuts. Samples of the said betel nuts were got examined from the local traders who opined that although the betel nuts looked like Assamese Chitti Supari having been coloured to give them an indigenous look they are of foreign origin. When the said betel nuts were dipped in the water for some time, they look like betel nuts of third country origin as per the Revenue. Accordingly, the Officers seized the betel nuts in question along with the seizure of the truck in question.
3. During the course of investigations, the statements of the driver and the khalasi of the truck were recorded. The opinion of the local traders was again taken who, after examining the samples, deposed that they were artificially coloured to conceal their real identity/origin.
4. The statement of Sri Devendra Shukla, Manager and authorised representative of M/s. Bikaner Assam Road Lines India Ltd., was also recorded, who disclosed that they had despatched 301 bags of Assam Rotha Katori Supari from Pathasala Assam to their Delhi Office. He also submitted that 194 bags belonged to M/s. Laxmi Trading Co. and the rest 107 bags belonged to M/s. Piyush Agency. Both the parties have produced to him the receipt of marketing tax which indicated that the impugned betel nuts were produced in Assam.
5. Shri Raj Kumar Jalan, authorised representative of M/s. Laxmi Trading Company, in his statement before the Officers, revealed that their firm had purchased Supari at Pathasala Market, which was consigned to M/s. Vijay Kr. Prahlad Rai of Delhi. He produced all the documents including Bills Nos. 1284, 1285, dated 28-9-2000, Marketing Form 'M' and money receipts. Shri Rakesh Jalan, authorised representative of M/s. Piyush Agency, Assam also produced documents showing purchase of betel nuts and the Marketing Form 'M' showing payment of local marketing tax. Both of them denied that the goods in question were of foreign origin.
6. Subsequently, samples of betel nuts were sent to Spices Board, Cochin, who submitted that they did not have facilities to analyse the betel nuts sample. Central Plantation Crops Research Institute (Indian Council of Agricultural Research), Kerala, was also approached to find out the country of origin of the betel nuts. But, vide their letter dated 28-12-2000, they submitted that it was not possible to ascertain the country of origin by physical and biochemical examination.
7. During the course of further investigations, Shri Jai Kishan Das, Proprietor of M/s. Vijay Kr. Prahlad Rai admitted that all the 301 bags of betel nuts were consigned to his firm, but denied that the same were of foreign origin.
8. Based upon the above facts, the appellants were issued a show cause notice proposing confiscation of the betel nuts in question and the truck, and imposition of personal penalties upon various noticees. The said show cause notices culminated into the impugned Order.
9. We have heard Shri A. Sinha, Consultant for the appellants and Shri D.K. Bhowmick, learned J.D.R. for the Revenue.
10. It has been strongly argued before us that there is nothing on record to reflect upon the foreign origin of the betel nuts. The opinion of the local traders, as obtained by the Revenue and relied upon in the impugned Order, is not sufficient inasmuch as the same cannot be held to be an expert's opinion. Referring to the earlier decisions of the Tribunal, Shri Sinha, learned Consultant, has strongly contended that such opinion cannot be made the basis for holding the goods to be of foreign origin. In the absence of any evidence to that effect, the further findings of the goods being of foreign origin, are not sustainable.
11. We find that the Commissioner in his impugned Order has referred to certain circumstantial evidences for holding the goods to be of foreign origin and of smuggling character. He referred to the fact that betel nuts were coloured to give them a look like Assamese Chitti Supari. This is a clear attempt to camouflage the foreign origin of the goods. He has also observed that Pathasala, Assam, loading place of the betel nuts, is a small town and no factory of Chitti Supari is located there. Betel nuts were kept there in a godown. He also stated that as per the statements of the representatives of M/s. Laxmi Trading Company and of M/s. Piyush Agency, betel nuts in question were Rotha Katari Supari and were coloured. They have not been able to give any satisfactory answer as to why the betel nuts in question were coloured. He has also strongly relied upon the opinion of the local traders and has doubted the certificates given by the Assistant Marketing Inspector, Howly and that of Commercial Tax Officers, Basirhat and Dalkola, on the ground that they have been issued after a long gap after actual crossing.
12. We find that the betel nut is a non-notified item under the provisions of Section 123 of the Customs Act, 1962. As such, the onus to show that the goods are of foreign origin and have been smuggled into the country, lies heavily upon the Revenue. The adjudicating authority has referred to certain circumstantial evidences which are also in the nature of doubts being expressed by him. The Tribunal in a number of cases assailed that the opinion of the local traders is not sufficient to hold the goods to be of foreign origin. The Spices Board and Central Plantation Crops Research Institute who are approached for ascertaining the country of origin of the betel nuts, have also shown their inability to find out the same. In these circumstances, we agree with the learned Consultant's contention that the Revenue has failed to prove the foreign origin of the nuts at the first instance. We further note that the circumstantial evidences referred to by the adjudicating authority also does not prove beyond doubt that the goods were smuggled into the country, though the same may raise certain doubts about the smuggling character of the same, However, they cannot be given the place of evidence, especially when the goods are non-notified and the Revenue is duty-bound to produce sufficient positive and tangible evidence to reflect upon the smuggled character of the betel nuts. Accordingly, taking all these factors into account, we find no justification for confiscation of the betel nuts and the truck involved and for imposition of personal penalties upon the appellants. Their appeals are allowed with consequential reliefs to them.