Page 231 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] COMMISSIONER OF CUSTOMS (PREV.), LUCKNOW v. PINKI AGARWAL 277

some other independent laboratory nor could able to establish that the second
criteria of the classification of the impugned goods as ‘motor spirit’ as observed
by the Tribunal in its order dated 15-9-2003 has been satisfied in the present case.
Therefore, in absence of any contrary report indicating that the impugned prod-
uct would be used as fuel in spark ignition engine, the product cannot be classifi-
able under chapter sub-heading 2710.13 of Central Excise Tariff Act, 1985. In the-
se circumstances, we do not find any discrepancies in the impugned order
passed by the Learned Commissioner. Consequently, the same are upheld and
appeals filed in by the Revenue being devoid of merit, accordingly dismissed.
(Operative portion of the order pronounced in court)

_______

2020 (372) E.L.T. 277 (Tri. - All.)

IN THE CESTAT, REGIONAL BENCH, ALLAHABAD
[COURT NO. I]
Ms. Archana Wadhwa, Member (J) and Shri Anil G. Shakkarwar,
Member (T)
COMMISSIONER OF CUSTOMS (PREV.), LUCKNOW
Versus
PINKI AGARWAL

Final Order Nos. C/A/71221-71223/2019-CU(DB) and Stay Order Nos. 70195-
70197/2019, dated 25-6-2019 in Application Nos. C/Stay/70150-70152/2019
in Appeal Nos. C/70212-70214/2019-DB
Confiscation - Smuggled goods - Large cardamom not notified item -
Onus to prove that goods smuggled lies upon Revenue and to be discharged
by production of sufficient and positive evidence - Trade opinion that goods
of foreign origin insufficient especially when assessee produced the purchase
ledger showing purchase of goods from local person located in India - Trade
opinion not to be considered to be an expert opinion - That cardamom may be
of foreign origin by itself not sufficient to hold them to be of smuggled nature
- No evidence to show that cardamoms were smuggled - Setting aside of con-
fiscation and penalties affirmed - Sections 111, 112 and 123 of Customs Act,
1962. [para 5]
Appeals rejected
CASE CITED
Krishna Das v. Commissioner — 2014 (303) E.L.T. 548 (Tribunal) — Referred ................................ [Para 4]
REPRESENTED BY : Shri Sandeep Kumar Singh, Authorized Representa-
tive, for the Appellant.
Shri S.A. Khan, Consultant, for the Respondent.
[Order per : Archana Wadhwa, Member (J)]. - Being aggrieved with the
order passed by Commissioner (Appeals) Revenue has filed the present appeals.

EXCISE LAW TIMES  15th April 2020  247