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TMI Blog2008 (9) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... r]. Ld. Counsel appearing for the appellant submitted that the first appellate order suffers from following two infirmities :- (1) A fact which is always a fact was discarded by the ld. Appellate Authority for no rhyme or reason holding that the argument of distance was not advanced at the original stage was not tenable. (2) The goods not being notified goods, onus of proof lies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is that when the goods were not notified goods, it is always the complainant who should bring every material to discharge onus of proof. Revenue being the complainant, there is nothing on record to suggest point of origin and destination of the goods, carrier of the goods if any which made the goods to make, chain of evidence involved in the import if any and ultimate seller and buyer of goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that an Appellate Authority has co-extensive and co-terminus power. He is not prevented to exercise powers of Assessing Authority in respect of enquiry or examination of a matter while deciding Appeal when an issue goes to the root of the matter. An appellant should not be deprived of justice on flimsy ground. Granting an opportunity to the aggrieved to adduce evidence and appraise properly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mons as required under the Act and that those are voluntary. In the cases before us, all that has been proved is that metal-scraps, even having no marks of foreign origin, have been transported from Islampur in the district of Murshidabad to Calcutta. The seized goods in question being undisputedly non-notified items in terms of Section 123 of the Act, the initial onus is upon the Revenue to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that those were brought from the District of Murshidabad and that there is no seaport near the said District. We find that such findings recorded by the Commissioner are based on mere conjecture. 8. When the onus of proof was not discharged by Revenue, the proceeding shall be said to have suffered from legal infirmity and becomes unsustainable. Similarly, the Appellate order flowing from su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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