IN THE HIGH COURT OF JUDICATURE AT PATNA TAX No.3 of 2005 ----- 1. Union of India 2. The Commissioner of Custom Patna … Applicants Versus Bishwanath Maheshwari, M/s Rajat Road Carriers, Dhupguri, Jalpaiguri, (West Bengal). ….. Respondent ---------- - For the petitioners : Mr.Rakesh Kumar Singh, Central Government Counsel ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 28th November, 2008. The counsel for the revenue submits that although the notice on the respondent has not been published in the newspaper as directed in the order 19th September, 2008, but in view of the decision of this court in the case of Commissioner of Customs, Patna Vs. Dwarika Prasad Agrawal (Tax Case No.13/2001) decided on 18th September, 2008 by the Division Bench along with other matters, the tax case filed by the Revenue may not have any merit. 2. In the case of Dwarika Prasad Agrawal (supra), the Division Bench of this court considered the matter thus: “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 - 2 - 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 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 is 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.” 3. In view of the aforesaid decision, the judgment of the Tribunal cannot be said to suffer from any legal error. 4. Tax case is, accordingly, disposed of. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil