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TMI Blog1976 (7) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... unting of green leaves. It is needless to refer to the contravention of Rule 226(ii) of the Central Excise Rules arising by reason of the obliteration and alteration of entries in the Drier Month Register on certain dates without the sanction and in the presence of proper Central Excise Officer, because this contravention, found by both the Collector as well as the Board was not disputed. Mr. B.C. Barua, learned Counsel for the Petitioner Company, having confined his arguments to the alleged violation under Rule 173 K (Q), the facts pertaining to such violation alone would have to be noticed. Rule 173Q(d) (ii), the terms of which are similar to the corresponding old Rule, provides for a penalty up to a certain limit being levied for contravention of any Rule with intent to evade payment of duty. According to Rule 9(1) of the Rules of 1944, no excisable goods shall be received from any place where they are produced, cured or manufactured to any other place until excise duty leviable thereon has been paid at such place and in such manner as is prescribed. Rule 53 prescribes the mode in which the Daily Stock Account is maintained, a general penalty up to Rs 1000/- is leviable in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had been seized from petitioner Company. Time was accordingly granted to enable such inspection and the final hearing was fixed in the first week of August 1969. 5.It has been noticed by the Collector in his order (copy of which is Annexure 'F' to this writ petition) that the petitioner did not avail of the opportunity for inspecting the record within 31-7-1969. The records were, however, made available to the party's representative on 14-8-1969 during the personal hearing. Though certain grounds have been raised in this petition concerning the petitioner not being given sufficient opportunity, Shri Barua rightly did not even refer to this aspect during the submission he made before us. A strenuous effort was, nonetheless, made by Mr. Barua to show that a Company of petitioner's standing and status should not be lightly presumed to have acted in the manner attributed to it, despite the discrepancies noticed above; he drew our attention to the fact, (also urged before the authorities concerned) that the figures in the "Green Leaf Weighment Pay Register" had been inflated by the Mohurer responsible for green leaf weighment for which he was charge-sheeted and his services also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every respect to cases under the Central Excises and Salt Act. In regard to inderect taxes, there is judicial authority for holding that the adjudicating Officer can take action on the basis of circumstantial evidence. This is what the Collector has done in the present case and the Board finds that there was sufficient circumstantial evidence before him to reach the findings which he has done." 6.As we read the said order there is no statement, express or implied, that the Board considered the burden of proof as not being on the Department. It may be true, as Mr. Barua sought to contend, that this portion of the order has not been expressed in pharaseology, which may be regarded as legally precise; but there can be no doubt that the Board was conscious of the burden being on the Department and thought that the same had not been properly discharged in the circumstances. That the burden of proof in such cases is not as high as in a criminal case, seems fairly obvious. This seems to be the purport of the Income Tax Reference No. 22 of 1973 (M/s. Hanutram Ramprasad, Dibrugarh v. Commissioner of Income Tax, Assam etc.), disposed of on 17-9-1975; it was a decision rendered by a Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was felt to be due to an honest and genuine behalf that the Company was not a dealer. In the latter, the concerned breach of the provisions of the Act was only technical. Both these cases were distinguished by the Division Bench as not being applicable to the case before it where the failure of the assessee was deliberate in law and the assessee only raised a legal ground that the case for not furnishing, was not disclosed. In the decision of the Supreme Court reported in 76 I.T.R 696 (Supra) it was also held that the gist of the offence under Section 28(1)(c) of the Income Tax was that the assessee had concealed the particulars of his income or deliberately furnished inaccurate particulars of such income and that it was for the department to establish the receipt of the amount in dispute constituting the income of the assessee. 8.There is no question in this case of the burden not being on the Department to show that the above said quantity of green leaves had been brought inside the factory and also put into manufacturing process resulting in manufactured tea. But when it is seen from the admitted facts that in the accounts of the petitioner Company, the said (large) quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lays down the proposition that the burdent of proof is on the Custom authorities and if they do not discharge that burden an order of confiscation (passed in that case) was bad. The second was AIR 1971 SC 1190 (Sub-divisional Officer and Collector, Shivesagar v. Shri Gopal Chandra Khound), which only holds that the mere fact that the seals of original bottles of adulterated liquor had been tampered with, would not be sufficient to raise the presumption that it had been adulterated. The third was AIR 1971 SC 746 (Rukmanand Bairoliya v. The State of Bihar and others), which only lays down the well-understood proposition that the finding of the Revenue authorities should not be based on pure assumptions and conjectures and that an order based on no evidence would be quashed. In this connection, reference may be made to the later decision of the Supreme Court reported in the I.T.R. 1976 page 548 (Hukum Chand Mills Ltd. v. Commissioner of Income Tax, Bombay) where H.R. Khanna, J. speaking for the Supreme Court pointed out that there could not be in the nature of things, "great precision and exactness" and that the endeavour could only be to be approximate. Since the "proportion" fix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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