TMI Blog2005 (12) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal, Kolkata has challenged the order of the appellate Tribunal affirming the finding of the Commissioner of Appeal holding that there was no justification for confiscation of goods belonging to the appellant and of imposing personal penalty upon the directors of the respondent company. 2. The fact giving rise to the filing of this appeal may be summed up thus : (a) Acting on a specific information that huge quantity of Silk fabrics of Chinese origin had been stored at the factory-cum-Godown premises of M/s. Ritika Limited, the respondent herein, the Officers of P I Branch, West Bengal, Kolkata searched the premises in presence of the Assistant Commissioner of Customs, P I Branch, the Director of M/s. Ritika Limited and two independent witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods and imposed personal penalty of Rs. 7,00,000/- upon each of the three Directors of the M/s. Ritika Limited under Section 112(B) of the Act. The said Joint Commissioner while passing such order, came to the conclusion that the purported supplier namely, M/s. Nav Bharat textile on investigation having been found to be a non-existing concern, the department had discharged their initial burden of proof. It is further recorded that correspondence with the Bank could not disclose who had actually encashed the cheques purportedly issued for payment of the goods and accordingly, he disbelieved the defence of the respondents that they were bona fide purchasers for value. (e) Being dissatisfied, the respondents preferred an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that it appeared through investigation that the Nav Bharat Textile was not in existence and as such, the appellate authority and the Tribunal illegally reversed the decision of the Joint Commissioner imposing penalty and confiscation. 5. The aforesaid contentions of Mr. Mukherjee are seriously disputed by Mr. Talukdar, the learned advocate appearing on behalf of the respondents and he contends that the Tribunal and the appellate authority rightly applied the principle of burden as the goods are undisputedly non-notified goods. Mr. Talukdar, thus, prays for dismissal of the appeal. 6. After hearing the learned counsel for the parties and after going through the materials on record we find that admittedly the goods in question are non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue to prove such fact. We are unable to accept the contentions of Mr. Mukherjee that burden shifted to the respondents. 9. 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. (See A. Raghavamma v. A. Chenchamma reported in A.I.R. 1964 SC 136;). 10. In this case, the respondent specifically stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove such assertion. No material had been placed showing that no such cheque was encashed by Nav Bharat. 12. 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. 13. 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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