2010 (8) TMI 353

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ficient 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. Bhoormull" : AIR 1974 SC 859 = 1983 (13) E.L.T. 1546 (S.C.) on the principle whereof the onus shifts on the respondent particularly when the case was admittedly of foreign origin and the respondent, could not produce any document regarding procurement of the goods and payment thereof and the respondent failed to identify any supplier of the goods and that there was admission on the part of the respondent that the goods were procured from Nepal through cash transaction of which there was no record with further admission that the goods were illegally imported into India which seems to be sufficient ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....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 issuance of such action under Section 123 of the Customs Act. 3. The learned Tribunal also found on fact that these goods are no doubt branded imported goods and the same were available in market in plenty, hence the smuggled character cannot be presumed and it was also held by the learned tribunal that when the imported goods are available in the market in plenty presumption is in favour of lawful importation of the goods. Under these circumstances, the learned Tribunal held that the revenue has failed to discharge its burden to prove that these goods were of smuggled cha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....en 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, can only be proved by the mother of the person who is instrumental to giving birth to the child, because the couple had only special knowledge and none else. Hence degree of knowledge of the person would be such that it will not be possible for an other person to testify with all conditions. On the aforesaid given legal proposition as we have discussed, we now examine whether the facts and circumstances of the case would fall within the said category? 6. The learned Tribunal on fact found that the goods are not of smuggled character nor the same are notifie....