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2005 (12) TMI 110 - HC - CustomsConfiscation and Penalty - Evidence - Onus of proof - huge quantity of Silk fabrics of Chinese origin - stored at the factory-cum-Godown - Non-notified goods - HELD THAT:- It is now settled law that burden in a criminal prosecution in the absence of any special protection given in any statute is always upon the prosecution. The goods in question being non-notified one, the burden is upon the revenue. Onus of proof is different from the burden of proof and we should not confuse the term "onus" with "burden". Burden of proof lies upon the person who has to prove a fact and it never shifts but the onus is shifted at every stage in the process of evaluation of evidence. In this case, the respondent specifically stated that they got those articles by purchase through payment by account payee cheques. If the revenue could produce the documents of the Bank showing that those were not encashed, we are prepared to accept the contention of Mr. Mukherjee that initial burden was discharged and the onus shifted upon the respondents to prove his definite defence. But the revenue having failed to discharge initial burden in this case, no question of shifting of onus arises. In this case, as indicated earlier, if the department produced documents showing that the defence of the respondent that they paid the price of the goods by account payee cheque in favour of Nav Bharat Textile was a false plea by production of the Bank's documents, the Court could reasonably come to the conclusion that the defendant had taken a definite wrong plea and as such, they were guilty; but the department could not disprove such assertion. No material had been placed showing that no such cheque was encashed by Nav Bharat. Although Mr. Mukherjee tried to impress us that Nav Bharat was not in existence and/or a fictitious person, we are not impressed by such contention. The respondents purchased goods in 1995 and the investigation started in the year 1997. If by that time, the Nav Bharat had really removed their business, for that reason the respondents could not be blamed. We, Thus, find that, the appellate authority and the Tribunal rightly held that the burden was not discharged by the revenue in the facts and circumstances of the case and as such no substantial question of law is involved herein. We accordingly dismiss this appeal with costs which we assess at 300 G. Ms.
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