2006 (9) TMI 506

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....ving F.L. 2 and to sell the same. On July 27, 1991, the authorities of the Excise Department found 96 bottles each weighing 750 M. L., 720 half bottles, each weighing 375 M.L., and 47 quarters each containing 180 M.L. Consequently, the Excise Inspector making raid of the shop of the assessee-firm seized all the materials and lodged the F.I.R. against him on one hand and on the other hand after getting necessary directions sold the same in the open market and fetched a sum of Rs. 48,000 by auction. On account of the F.I.R. the assessee was prosecuted in the court of Magistrate, where he made confession that he was found in possession of Indian-made foreign liquor in the quantity as detailed above. The assessee was convicted and in the app....

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....m the side of the Excise Department that the price fetched in auction was Rs. 48,000 only and as such keeping in mind that there may have been repetitions of such activities of clandestine business during the year he estimated the turnover of such transactions in the value of Rs. 1,00,000 and imposed tax accordingly. Aggrieved by the order passed by the first appellate authority, the department went in the second appeal. The assessee also filed the second appeal. The second appellate authority/Sales Tax Tribunal clubbed both the appeals and decided by a common judgment. The Tribunal after considering the arguments advanced by the parties, was pleased to dismiss the second appeal filed by the Revenue Department. The Tribunal at the sam....

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....ced all relevant facts before the assessing authority under the law he has discharged the burden of proof that lay on him under this section. Therefore, in such situation the burden shifts to the department either to fasten tax liability on the assessee or to point out the material or facts which will not entitle the assessee to relief claimed by him under section 3-A. In the instant case the assessee claimed that it was not an import made by him, as such he had to establish that he had purchased that liquor directly from the manufacturer which was not possible because he was not the holder of F.L. 2. The question which remains to be considered is that - as to what should have been the quantity or the amount of turnover in his behalf in ....