Judgment:
Per Archana Wadhwa (for the Bench):
1. After hearing both sides, I find that officer of Customs (Prev) containing 15 bags of Cut betel nut on 1.9.09 lying with the parcel office, Railway Station, Mugal Sarai for further investigation. Said goods were examined by officers on 4.9.09 and were found to be 1200 Kg. of betel nut totally valued of Rs.60,000/-. The officers obtained a trade opinion on 5.9.09 which revealed that the seized betel nut were of foreign origin. Further, inasmuch as nobody claimed the ownership of the said betel nuts, a show cause notice was issued to the ‘whomsoever it may concern’ proposing to confiscate the seized betel nuts and to impose penalty.
2. Subsequently, a letter dated 21.12.09 was addressed by the appellant to the Assistant Commissioner owning the said 15 bags of supari. It was also submitted that the same is a produce of West Bengal and were duly assessed by market commodity. In response to the said letter, the appellants were summoned to appear before the Superintendent on 8.2.2010. Accordingly, Shri Banshi Lal, proprietor of M/s. Sonali Traders, Varanasi appeared before the Superintendent on the said date and in his statement recorded on 8.2.10 deposed that the consignment of 15 bags of supari was consigned by Shri Nil Kamal Saha, from New Alipurduar , West Bangal to his firm M/s. Sonali Traders under RR No. 871799 dated 29.8.09. The said goods were purchased from local market at Mathabhanga. He also produced photocopies of RR, money receipt book, self declaration No. 01 and tax invoice all dated 29.8.09.
3. The appellants also approached the Hon’ble High Court of Allahabad for release of the goods. The High Court directed the department to decide the pending application by 25.8.10. The appellants filed written submissions before the Asstt. Commissioner vide his letter dated 17.8.10, reiterating the same very submissions which were made in the statement.
4. The original adjudicating authority, in his impugned order, observed that the goods were detained and subsequently seized on 4.9.089 and nobody came forward to claim the ownership. The claim was made by the appellant for the first time in the 3rd week of September, 2009. He observed that the railway receipt produced by the appellant bears the name of the consignor as N.K. Saha and that of consignee as Sonali Traders-MGS (Mughalsarai). The complete address of consignee was not given under the said RR. Inasmuch as the consignee address has been shown as Mughalsarai and not of Varansasi where the applicant is situated, RR cannot said to be the documentary evidence of ownership of the appellant. He also observed that scrutiny of money receipt produced by the appellant reveals that money was received from M/s. Sonali Traders and not from N.K. Saha. This shows that the goods were purchased by M/s. Sonali Traders and not by Shri N.K. Saha. Perusal of form XXXVIII of UP Commercial Tax relating to M/s. Sonali Traders reveals that the goods were sent on commission basis by Shri N K. Saha. As such, he concluded that goods were purchased by Shri N.K. Saha and money receipt was in the name of Sonali Traders. As such, he held that in view of the above description tax invoice number and self declaration number does not lend any support to the appellant to substantiate their claim of ownership.
5. He accordingly, rejected the appellants claim, confiscated the goods by holding that they are of foreign origin and have been smuggled into the country.
6. The appellant’s appeal against the above order did not succeed before Commissioner (Appeals). Hence, the present appeal.
7. On going through the impugned order, I find that admittedly the Railway receipt produced by the appellant reveals the name of the sender as Shri N.K. Saha and name of consignee as Sonali Traders. No doubt the complete address is required to be given in the said RRs but the question arises as to whether the non mentioning of complete address of the consignor / consignee would affect the fact of ownership from the Sonali Traders to some other person. When the said Railway station receipt is examined along with money receipt produced by the appellants, it becomes clear that the payment for the said 15 bags of betul nuts was made by Ms. Sonali Traders.
8. The Revenue argument that the goods were sent by Shri N K Saha on commission basis as such Sonali Traders cannot be held to be owner of 15 bags cannot be appreciated inasmuch as it is the business arrangement between M/s. Sonali Traders and Shri N K Saha the commission agent of M/s. Sonali Traders. The money receipt clearly reflects the purchase of the goods by Sonali Trader. Further, the tax invoice produced on record clearly establish that the goods were purchased by M/s. Sonali Traders. The declaration No.01 also reflects upon the name of the consignee as N.K. Saha, of M/s. Sonali Traders. The said declaration also reveal that full address of the consignor and consignee. In view of the foregoing, I am fully convinced that owner of supari is M/s. Sonali Trader especially when no other person has come forward to claim the ownership of the goods.
9. As regards the confiscation of Betul nuts, we find that Revenue’s case is solely on the basis of trade opinion given by one Shri Deepak Kumar of M/s. Om Tambul Bhandar. Qualification of Shri Deepak Kumar nowhere stands discussed in the impugned orders. Whether the said Shri Deepak Kumar of M/s. Om Tambul Bhandar., G.T. Road, Mughalsaria was expert in deciding the origin of betul nuts of the appellants or not is a question hanging in the vacuum. The appellants have relied upon various decisions of the Tribunal laying down that trade opinion is not sufficient to establish that betul nuts are of foreign origin. The adjudicating authority has not relied on the said decision by observing that the facts of the case are distinguishable and are not fully applicable.
10. We find that betul nuts are not notified items under section 123 of the Customs Act. As such, the onus to prove that the same are of foreign origin and were smuggled into the country lies solely on the Revenue. It is the matter of common knowledge that betul nuts grow in west part of the country and are available in abundance. There is no affirmative evidence to show that the said betul nuts are of foreign origin apart from the statement of Shri Deepak Kumar. Such experts of trade opinion have not been accepted by the Tribunal in various precedent decisions. One such reference can be made to Tribunal’s decision in the case of Kamakheya Trade Company vs. CC, Patna reported as reported as [2002 (143) ELT 568 (Tri-Kolkata)] and Laxmi Narayan Somani vs. Commissioner of Customs, Patna reported as [2003 (156 ) ELT 131 (Tri-Kol)]. As such, in the absence of any conclusive evidence reflecting upon the foreign original of the goods and their smuggled character, I find no reason to uphold the confiscation of the goods. Accordingly, impugned orders are set aside and appeal is allowed with consequential relief to the appellants. (Pronounced in the open court on 9.8.2012).