TMI Blog2010 (8) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... d for, and when such burden was not discharged by the Revenue. - 3 of 2004 - - - Dated:- 10-8-2010 - Kalyan Jyoti Sengupta and Kalidas Mukherjee, JJ. REPRESENTED BY : Shri Chatterjee, for the Appellant. [Order]. The Court : This court by order dated June 15, 2004 admitted the appeal on the following substantial questions of Law: (i) Whether on the facts and circumstances of the case the department was able to discharge the initial burden of proving that the goods were smuggled and was so recovered from the possession of the respondents and that the evidence adduced was sufficient for the purpose of Section 106 of the Evidence Act to discharge the burden as was held in the case of Collector of Customs, Madras v. D. Bhoor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case and also the statement recorded by the raiding officials and the partners of the respondent firm came to the conclusion that the goods are neither notified one nor the same could be classified to be of smuggled character. Therefore the order of confiscation as well as penalty was set aside. The revenue thence took this matter on appeal to the Tribunal. The learned Tribunal upheld the judgment and order of the first appellate authority [2003 (256) E.L.T. 908 (Tribunal)]. It appears in addition thereto the learned tribunal on fact found that the goods are not notified or prohibited goods within the meaning of Sections 113 and 111 nor they were found to be of smuggled character as it is a pre-condition for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine the only point as to whether in this case the burden of proof lies with the respondent as required under Section 106 of the Evidence Act. 5. The learned Tribunal is the last fact finding authority. The provision of Section 106 of the Evidence Act while we seriously take notes of the legal argument of Mr. Chatterjee, will be applicable when on the facts and circumstances of the case no other person was or is in position to tell the truth about the fact in issue except that person. But in a case if other person is in position to prove the fact in issue, then obviously Section 106 of the Evidence Act cannot be pressed into operation. For example, whether a particular person is the father of a particular person in absence of former, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revenue to prove that the goods are smuggled one for which action was called for, and when such burden was not discharged by the Revenue, shifting of burden in this case is not warranted. The learned tribunal in our view has come to correct finding of both fact and law. 8. Mr. Chatterjee has cited a Supreme Court decision in support of the proposition of shifting of burden in the case of State of West Bengal v. Mir Mohammed Omar, reported in (2000) 8 SCC 382 and also the judgment of the Division Bench of this court on this point. We are of the view that those two decisions were rendered on factual basis. The principle of law explained in these two judgments cannot be doubted nor be disputed, but the applicability of the same has t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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