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TMI Blog2014 (3) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... uct' - the Revenue rightly held that it was taxable on higher rate - despite the fact that initial burden lie upon Revenue but the onus shifted upon assessee to show that item in question, though shown by him as 'waste product' yet for the purpose of tax liability, it will be covered by different entry wherein lessor rate of tax is chargeable - the same has rightly been taxed under item 32 –Decided against assessee. - Sales/Trade Tax Revision No. - 1413 of 2004 - - - Dated:- 11-3-2014 - Hon'ble Sudhir Agarwal,JJ. For the Applicant : Kunwar Saxena For the Respondent : C.S.C. ORDER 1. Heard Sri Kunwar Saxena, learned counsel for the revisionist and learned Standing Counsel for the opposite party. 2. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Polyester Fibre Yarn was treated as waste product and assessee have been taxed at higher rate of 4% + 1% instead of 2% treating it to be a waste product under Entry 32 instead of Entry 55. 5. Sri Kunwar Saxena, learned counsel for the revisionist submitted that in the proceedings under Section 21, onus to prove that higher tax liability lie upon the Revenue but in the present case, Revenue did not adduce any evidence to demonstrate that disputed goods were not yarn but waste product and therefore, Tribunal in taking a view otherwise than what was contended by assessee had committed manifest error. He placed reliance upon a decision of this Court in M/s Budh Prakash Company Vs. the Commissioner of Sales Tax 2004 NTN (Vol.25) 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist. The distinction between burden of proof and onus is that the former lies upon the person and never shifts but the onus shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title. 10. The above distinction between burden of proof and onus of proof has been explained in A.Raghavamma Vs. A. Chenchamma, AIR 1964 SC 136, foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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