DEVI SHANKAR TIWARI Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) ALL the three appeals are being disposed of by a common order as they arise out of the same impugned order of the Commissioner vide which he has confiscated betel nuts belonging to M/s. Jyoti Traders with an option to them to redeem the same on payment of redemption fine of Rs. 5,00,000/ -. In addition, the truck used for transportation of the betel nuts and belonging to M/s. Abhiyan Carriers Ltd., has also been confiscated under Section 115 (2) of the Customs Act, 1962 with an option to redeem the same on payment of fine of Rs. 50,000/ -. Personal penalty of Rs. 20,000/ - each has been imposed upon the said two appellants. Further personal penalty of Rs. 10,000/ - has been imposed upon Shri Tiwari, General Manager of M/s. Abhiyan Carriers Ltd.

(2.) SHRI P.K. Das, ld. Advocate appearing for the appellants submits that the entire case of the Revenue is based upon the fact that the betel nuts in question were of foreign origin and that the same were smuggled from Nepal into India. For holding the foreign origin character of the betel nuts, the Adjudicating Authority has relied upon the trade opinion from the dealers of betel nuts and the fact that the same were chemically treated. He submits that the Tribunal in a number of cases has held that visual examination of the betel nuts by the traders cannot be held an expert opinion. As regards the foreign origin of the same, he submits that the plea to get the betel nuts tested from the reputed laboratory for confirmation the origin of betel nuts has been turned down by the adjudicating authority as after -thought. As such, he submits that the Revenue having failed at the first instance to prove beyond doubt that betel nuts are of foreign origin, the confiscation of the same on the ground of being smuggled is not proper.

(3.) LD . Advocate further submits that the betel nuts are non -notified items under Section 123 of the Customs Act, 1962. As such, the onus to prove the same lies heavily upon the Revenue. In the present case, there is no evidence on record showing that the betel nuts have been smuggled from Nepal, as alleged. He submits that the driver and the khalasi in their statement stated that the betel nuts have been loaded in the truck from Jalpaiguri which fact has weighed with the adjudicating authority to conclude against the appellants. He submits that the adjudicating authority has also gone by the fact that the huge quantity of betel nuts have been imported from Nepal a few month back from the material period and three were alert circular issued as result of specific information and the same are concrete evidences that the seized betel nuts have been illegally imported into India from Nepal. The appellants contention is that such general information received by the Revenue Department cannot take the place of evidence for holding that the betel nuts in question are smuggled.