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TMI Blog2004 (11) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... on irrelevant materials, or, partly on relevant materials and partly on irrelevant materials or keeps out of consideration on relevant material. In the second category of case the question arises because it is not known as to what extent irrelevant materials have influenced the conclusion. If a finding of fact is arrived at by the Tribunal after improperly rejecting evidence a question of law arises. If findings of fact are based on some evidence sufficiency thereof does not give rise to a question of law. In the instant case the conclusions arrived at by CEGAT are with reference to documents, and materials and they cannot be said to be perverse or without basis. It is not a case where CEGAT has based its conclusions on any irrelevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) "When it has not been fully proved/established that silver in questions were brought into country before the issue of Notification No. 12(11) F/1/48, dated 25-8-1948 issued under Section 8(1) of FERA, 1947 and the goods before foreign mark; can the goods be released to the party on the basis that onus of proof was on the department that these were brought, smuggled without payment of duty into the country, when the burden of proof has not been shifted to the department." 2. The High Court found that the questions posed were really based on finding of facts giving rise to no question of law. 3. The basic issue which arose revolved around the question whether 85 silver bars which had foreign markings thereon were smuggled goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle-I, "Indore (in short the "WTO") the articles were claimed to have come to possession of the concerned persons much before the date of notification. The WTO considered the question whether the acquisition was in the year they were found or related to an earlier period. Taking, note of several factor it was concluded that the articles had come into possession of the assessee long back. 4. In response to the show cause notice issued on 2-2-1966 the assessee took the stand that the Notification No. 12(11)F-I/40, dated 25-8-1948 issued under Section 8(1) of the erstwhile Foreign Exchange and Regulation Act, 1947 (in short the "Act" read with Section 11 of the Act had no application. The Commissioner held that the various circumstances h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It is to be noted that Section 123 of the Act raising statutory presumption placing burden on the assessee to prove that the articles are not smuggled. The said provision reads as follows :- Burden of proof in certain cases. - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al v. C.I.T. (1954) 26 ITR 736 (S.C.) where a court of fact acts on materials partly relevant and partly irrelevant it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at the finding. Such a finding is vitiated because of the use of the inadmissible material and thereby an issue of law arises (Also see C.I.T. v. Daulat Ram Rawatmull (1973) 87 ITR 349 (S.C.). A question of fact becomes a question of law if the finding is either without any evidence or material, as observed by this Court in Chhabildas Tribhuvandas Shah v. C.I.T. (1966) 59 ITR 733 (S.C.), or if the finding is contrary to the evidence, or the finding is perverse or there is no direct nexus between the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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