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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 ..... /X-10(1)-80-U.P. Act XV/48-Order-81 dated 7.9.1981, as amended by notification No. ST-II-1225/XI-9(94)/91-U.P. Act 15-48-Order-92 dated 31.3.1992 or it is taxable under Entry 55 of the Notification dated 7.9.1981." 3. The two entries read as under: Sl. No. Description of Goods Point of Tax Rate of Tax 32 Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other notification issued under the Act Sale to consumer 8 per cent 55 Yarn of all kinds except those covered by any other notification M or I 2 per cent Amendment vide notification No. ST-II-1225/XI-9(94)/91-U.P. Act 15-48-Order-92 dated 31.3.1992 : "(4) in entry at se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 8. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line Vs. I S Corpn, (1941) 2 All England Report 165, Lord Maugham said; "It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons." 9. A pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof. 12. In the present case, the case set up by assessee-revisionist was that 'Polyester fibre yarn' in question was not capable of use for the purpose of manufacturing Zippers and therefore, the assessee admitted that it was a discarded unservisable item and was sold as waste product. That being so, the revisionist himself having admitted that goods in question was not treated to be a yarn at the time of sale but 'waste product', the Revenue rightly held that it was taxable on higher rate. 13. In my view, despite the fact that initial burden lie upon Revenue but the onus shifted upon assessee to show that item in question, though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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