TAX CASES No.13 OF 2001
Against the order No. 646-Cal/2000 dated
22.5.2000 passed by Member (Judicial) of Custom,
Excise & Gold (Control)Appellate Tribunal in
Appeal No. C-464/99 arising out of the order in
appeal 122/Pat/Cus/Appeal/99 dated 24.8.1999
passed by the Commissioner (Appeals) Customs &
Central Excise, Patna.
COMMISSIONER OF CUSTOMS PATNA------------Appellant
Versus
DWARIKA PRASAD AGARWAL--------------------Respondent
TAX No.24 oF 2001
Against the order no.A-360/Kol/2001 dated
30.5.2001 passed by Member (Judicial) of Customs,
Excise and Gold (Control)Appellate Tribunal,
Eastern Bench,Kolkata in appeal No. C-18 of 2001
arising out of order in original No.
8/CC/ADJ/2000 dated 16.11.2000 passed by the
Commissioner of Customs,Patna.
COMMISSIONER, COSTOM DEPARTMENT,———Appellant
GOVERNMENT OF INDIA.
Versus
KRISHNA BAHADUR CHHATYIIYA————–Respondent
TAX No.25 oF 2001
Against the order No.A-359/Kol/2001 dated
30.5.2001 passed by Member (Judicial) of
Customs,Excise and Gold (Control) Appellate
Tribunal, in Appeal No. C-17/2001 arising out of
order in original No. 8/CC/ADJ/2000 dated
16.11.2000 passed by the Commissioner of
Customs,Patna
COMMISSIONER.CUSTOM DEPARTMENT————Appellant
Versus
VIJAY SINGH DAGA————————Respondent
TAX No.26 oF 2001
Against the order No.A-362/Kol/2001 dt. 30.5.2001
passed by Member (Judicial) of Customs, Excise
and Gold (Control) Appellate Tribunal, Eastern
Bench, Kolkata in Appeal No. C-20/2001 arising
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out of order in original no. 8/CC/ADJ/2000 dt.
16.11.2000 passed by the Commissioner of
Customs,Patna.
COMMISSIONER, CUSTOM DEPARTMENT——–Appellant
Versus
JITENDRA KUMAR JAT———————–Respondent
TAX No.27 oF 2001
Against the order NBo. A-358/Kol/2001 dt.
30.5.2001 passed by Member (Judicial) of Customs,
Excise and Gold (Control) Appellate Tribunal, in
Appeal No. C-16/2001 arising out of order in
original No. 8/CC/ADJ/2000 dated 16.11.2000
passed by the Commissioner of Customs,Patna.
COMMISSIONER, CUSTOM DEPARTMENT———-Appellant
Versus
SMT.KAMALA DEVI BAID——————–Respondent
TAX No.6 oF 2002
Against the order No.S-342,A-364/Kol/2001 dated
30.5.2001 passed by Member (Judicial) of Customs,
Excise and Gold (Control) Appellate Tribunal, in
Appeal No.C-265/2000 arising out of order in
appeal No.166/Patna/Cus/appeal/2000 dated
12.5.2000 passed by the Commissioner of Customs
and Central Excise(Appeals),Patna.
COMMISSIONER, CUSTOM DEPARTMENT———–Appellant
Versus
VIKASH AGARWAL————————–Respondent
TAX No.50 oF 2002
Against the order No.A-1352/Kol/2001 dated
20.12.2001 passed by the Customs Excise and Gold
(Control) Appellate Tribunal, East Zonal Bench,
Kolkata by Member (Judicial) and Member
(Technical) in appeal No. C- 502/2001;
COMMISSIONER, CUSTOM DEPARTMET————Appellant
Versus
M/S SUSHIL DAGGA, MANAGING DIRECTOR——Respondent
TAX No.53 oF 2002
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Against the order No. A-1351/Kol/2001 dated
20.12.2001 passed by the Customs Excise and Gold
(Control) Appellate Tribunal, East Zonal Bench,
Kolkata comprising Member (Judicial) and Member
(Technical) in appeal No.C-501/2001.
COMMISIONER , CUSTOM DEPARTMENT———-Appellant
Versus
M/S BIKANER ASSAM ROADLINES INDIA LTD——-Respondent
For the Appellants:- Mr. Rakesh Kumar Singh, Advocate
For the Respondents:- Mr. Birju Prasad, Advocate
P R E S E N T
THE HON’BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD
THE HON’BLE DR. JUSTICE RAVI RANJAN
Prasad & Ranjan,JJ:- Various quantity of betel nuts
were seized by the Officers of the Directorate
of Revenue Intelligence under a reasonable
belief that same were smuggled into India.
Proceedings for its confiscation were initiated
and the Deputy Commissioner confiscated the
betel nuts and inflicted personal penalty upon
the owners thereof. Owners appeals before the
Commissioner (Appeals) also failed. They carried
the matter in appeal further before the Customs,
Excise and Gold (Control) Appellate Tribunal,
hereinafter referred to as the Tribunal. The
Tribunal set aside the order of confiscation and
penalty on the ground that Custom authorities
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have failed to prove that “betel nuts were of
foreign origin and they were imported
illegally.”
Aggrieved by the same, the Commissioner
of Customs has preferred these applications
under Section 130A of the Customs Act. This
Court by order dated 11.2.2003 directed the
Tribunal to draw statement of case and refer
the following questions of law for determination
in Tax Case No. 13 of 2001:-
“(a) Whether the Tribunal
without referring any of the evidence
which has been relied upon by the
original or appellate authority was
justified in reversing the said order.
(b) Whether the finding
arrived at by the Tribunal is perverse
in the sense that without adhering to
the material evidence it has arrived
at such a finding.
Identical questions of law have been
drawn in other cases also.
Tribunal as directed drew the statement
of case and forwarded the aforesaid questions of
law for determination.
In order to establish that the betel
nuts are of foreign origin the authority rely on
the trade opinion.
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Mr. Rakesh Kumar Singh, appearing on
behalf of the petitioner submits that persons
well versed in the trade having opined that betel
nuts were of foreign origin, there was no
justification for the Tribunal to reject that
opinion.
Mr. Birju Prasad, appears on behalf of
the Opposite party.
We do not find any substance in the
submission of Mr. Singh. It is not in dispute
that betel nut is non-notified item and, as such,
the onus to prove that the same is of foreign
origin lies on Custom authority. It is further
not the case that betel nuts available in the
country are significantly different than those of
foreign country. The contention that betel nuts
of foreign origin are little bigger than what is
available in the country itself will not lead to
the conclusion that it is of foreign origin. In
our opinion, in absence of significant and
apparent difference between the betel nuts
available in this country and of foreign origin
it shall be difficult to come to a definite
finding that betel nuts are of foreign origin on
the basis of trade-opinion. We hasten to add that
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trade-opinion may not be an expert opinion but
opinion based on long experience in the trade
considering significant difference in the items
of Indian origin and foreign origin may be of
persuasive value and may not be thrown out only
on the ground that trade opinion is not an
expert-opinion. If there are significant
differences in shape, size, taste etc, of betel
nuts of Indian origin than the betel nuts of
foreign origin the person in trade may form an
opinion that it is of foreign origin which in the
facts of a given case may be accepted. However in
the present case we find that the trade opinion
is not based on any significant decisive
difference. In that view of the matter, we are
of the opinion that betel nuts directed to be
confiscated cannot be said with certainty to be
of foreign origin.
Accordingly our answer to substantial
question no.(a) formulated is in affirmative and
it is held that in the facts and circumstances of
the case the Tribunal was justified in reversing
the order of original and the appellate
authority.
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In view of aforesaid, the answer to second
question No.(b) is also in the negative and we
hold that the finding arrived at by the Tribunal
is based on sound principle and cannot be said to
be perverse.
To put the record straight, it is worth
mentioning here that a large number of cases
involving the same issue i.e. Tax Case No. 68 of
2002 (Commissioner of Central Excise, Patna Vs.
M/s SCI Sheo Shankar Chemical Industry India
Ltd.),Tax Case No. 69 of 2002 (Commissioner,
Customs Department Govt. Of India vs. Shri Devi
Shankar Tiaway) and Tax Case No. 54 of
2002(Commissioner of Custom, Patna Vs. Pyus
Chakrabarty, Prop. Pijus Trading Co.,), have
been dismissed by order dated 13.9.2006 and
8.9.2006 by a Division Bench of this Court.
Tax cases stand disposed off
accordingly.
(Chandramauli Kr.Prasad,J.)
(Dr.Ravi Ranjan,J.)
Patna High Court
Dated the 18th of September,2008
A.Kumar/NAFR