Customs, Excise and Gold Tribunal - Calcutta
Laxmi Trading Co., International ... vs Commissioner Of Customs (Preventive), ... on 20 December, 2001
JUDGMENT
Archana Wadhwa
1. All the appeals are being disposed of by a single Order as they arise out of the same impugned Order passed by the Commissioner of Customs(P), Patna vide which he has confiscated the betel nuts belonging to the various appellants with an option to them to redeem the same on payment of a redemption fine of Rs. 2.00 lakh (rupees two lakh), on the findings that the same are of foreign origin and have been smuggled into India form Nepal. In addition, personal penalties have been imposed upon the various persons and the vehicles used for carrying the betel nuts in question have also been confiscated with an option to the owners to redeem the same on payment of a fine of Rs. 1.50 lakh(Rupees one lakh fifty thousand) each.
2. We have heard Shri A. Sinha, learned Consultant for the appellants and Shri D.K. Bhowmick, learned J.D.R. for the Revenue. The first contention of the learned Consultant is that there is no evidence on record to show that the betel nuts in question were of foreign origin. The adjudicating authority has relied upon the trade opinion of the local shop-keepers for arriving at the finding of foreign origin of the betel nuts in question, which has not been approved by the Tribunal in a number of cases. He relied upon the Tribunal's decision in the case of Lal Mohan Rai v. Commissioner of Customs, Patna reported in 2001(131) ELT-295 (Tri,-Kolkata) showing that the visual examination is not sufficient to prove the contraband nature of the same. Reference has also been made to the Tribunal's decision in the case of Shri Ganesh Prasad Agarwal and Others v. C.C., Patna being Tribunal's Order No.A-1581-1587/CAL/2000 dated 21.9.2000. It has been further argued that betel nuts are non-notified items under Section 123; of the Customs Act, 1962 and as such, the onus to prove the smuggled nature of the same lies upon the Revenue. There is nothing in the present case to show that the betel nuts have, in fact, been smuggled from Nepal.
3. We find that the Commissioner has relied upon the opinion of the local traders for concluding that the betel nuts are of foreign origin. He has also relied upon the statements of the drivers, which are to the effect that the betel nuts have been imported from Nepal and loaded in the trucks in question at Siliguri. The fact that the drivers tried to escape after seeing Customs Officers, has also been held to be against the appellants.
4. After careful consideration of the submissions made by both sides, we find that before holding that the betel nuts in question have been smuggled into India, it is essential to hold the same as being of foreign origin. The Tribunal in a number of cases has held that visual examination of the goods by the local shop-keepers, cannot be held to be an expert opinion so as to determine the origin of the betel nuts, especially when betel nuts are grown in plenty in the Northern State of the country. In the instant case also, it is the trader's opinion which has been made the basis for holding the goods to be of foreign origin. We also further note that the contraband nature of the same has been concluded based upon the drivers' statements. As per their statements also, the goods have been loaded form Siliguri and it is only based upon their knowledge, they had deposed that the goods had been imported from Nepal. There is no concrete evidence on record to show the contraband character of the goods. The Presumption, howsoever strong, cannot take the place of evidence. The betel nuts being non-notified goods under the provisions of Section 123 of the Customs Act, 1962, the onus lies heavily upon the Revenue to show that the goods are smuggled. There being no concrete evidence we do not find any justification for confiscation of the betel nuts and for confiscation of the vehicles and for imposition of personal penalties upon the various persons. Accordingly, we set aside the impugned Order and allow all the appeals with consequential reliefs to the appellants.