ORDER
Smt. Archana wadhwa
1. All the appeals are being disposed of together inasmuch as the same arise out of the common order passed by the Commissioner of Customs, Patna. The Commissioner vide his impugned order has confiscated betel nuts on the ground of their being of smuggled origin and smuggled character. Apart from that the conveyance involved have also been confiscated with an option to the owners to redeem the same and penalties have been imposed upon various persons, as detailed below:-
(a) Shri Mahabir Pd. Sarawagi Rs.1,00,000.00
(b) Shir Iqram Ali Rs.50,000.00
(c) Shri Shiv Kr. Jha Rs.50,000.00
(d) Shri Sattar Rs.5,000.00
(e) Shri Babu Ram Rs.10,000.00
2. I have heard Shir. S.P. Majumdar, adv. & Shir A. Sinha, consultant appearing for the appellants and Shri V.K. Chaturvedi, ld. SDR for the Revenue.
3. It has been strongly contended before me that there is no evidence no record to show the foreign original of the betel nuts in question. The adjudicating authority has only gone by the trade opinion of some persons, which cannot be equated to the experts opinion. It has been further argued that both the consignors and consignees of seized goods are duly regd. dealers and the transaction discovered by licit documents. Further the betel nuts are non-notified items under the provision of section 123 of the Customs Act, 1962 and the Revenue has not produced any evidence to discharges the onus placed upon them as regards the smuggled nature of the betel nuts. The entire order has been passed on the basis of presumptions and assumptions. Reliance was placed on the following decisions:-
(a) Order No. 936-937/Cal/95 dt. 4.9.95
Bikaner Assam Roadlines v. CC, Patna
(b) Order No.A 225/Cal/1997 dt.27.2.97
Altaf Hussain v. CC, Shg.
(c) Order No.A-1026-1027/Cal/98 dt.3.12.98
Kantilal Daga & Ors. v. CC, Patna.
(d) 2000 (115) ELT 182 (T)
Ram Nath Sah. v. CC, Patna
(e) order no. A-54-CAL/2000 dt. 21.1.2000
Sri Dwarika Pd. Agarwal v. CC. Patna.
(f) Order NO. 52-CAL/200 dt. 21.1.2000
Sri Dwarka Pd. Agarwal v. CC, Patna.
(g) Order No. A1581-1587/CAL/2000 dt. 21.9.2000
Ganesh Pd. Agarwal & Others v. CC, Patna.
(h) Order No.A 646/CAL/2000 dt. 22.5.2000
D.P. Agarwal v. CC (Appeals), Patna.
(i) Order no. A-281-Kol/2001 dt. 3.5.2001
Sri Arbind Kumar v. CC, Patna.
4. After giving careful consideration to the issue involved I find that there is no concrete evidence on record as regards the foreign origin of the betel nuts. The Tribunal in the relied upon cases has observed that the betel nuts are grown in plaint in Orissa. The Revenue is required to first prove that the goods in question are of foreign origin. Mere trade opinion of some of the persons dealing in betel nuts cannot be held to be an expert opinion so as to conclusively prove that the betel nuts are of foreign origin. I also note that betel nuts are non-notified items and as such the onus to prove that the same are smuggled lies heavily upon the Revenue. There is no evidence in the present appeals showing discharge of such burden by the Revenue. In all the decision referred to by the ld. adv., I find that the confiscation of betel nuts has been set aside, in identical set of facts and circumstances. Accordingly following the ratio of the earlier decisions I allow all the appeals with consequential reliefs to the appellants and set aside the impugned order.
Pronounced in the Court.