"BURDEN OF PROOF"

"BURDEN OF PROOF"

We usually believe that burden of proof lies on the Assessee but it's not in all cases. When the Assessing Officer levies allegations then the onus is on them

Let's decode few critical aspects of this

Raja Abhishek

Your NIRC Candidate

1. Burden of proof vis-à-vis invocation of charging provisions

1.1 Ambalal Sarabhai Enterprises - Supreme Court

(1989) 43 ELT 214

Central Excise - Dutiability - Burden on the department to prove that goods were marketable hence liable to excise duty -?

Failure of the department to adduce evidence - Case to be decided on the basis of evidence available on record.

1.2 Cipla Ltd. - Supreme Court

(2008) 225 ELT 403 : (2010) 5 SCC 534

In the present case, since no evidence was adduced as to the marketability of BMS and that it was a distinct product for being sold in the market and held, it was not marketable and hence not exigible for duty

2. Burden of proof vis-à-vis classification

2.1 Hindustan Ferodo Ltd. - Supreme Court

(1997) 89 ELT 16 :: (1997) 2 SCC 677 :: (1997) 106 STC 214

The onus of establishing that goods are classifiable under a particular tariff entry lies upon the Revenue.

2.2 Garware Nylons Ltd. - Supreme Court

(1996) 87 ELT 12 :: (1996) 10 SCC 413

Burden of proof on the taxing authorities to show that a particular item is taxable in the manner claimed by them - Mere assertion is of no avail -?

The taxing authority is entitled to lay evidence, especially when the assessee's claim is supported by trade inquiries and affidavits of the persons dealing in the subject goods.

3. Burden of proof vis-à-vis invocation of extended period/penalty

3.1 Tamil Nadu Housing Board - Supreme Court

(1994) 74 ELT 9

The proviso acts as an exception to the main clause. Its use requires two conditions: fraud or collusion, and intent to evade duty.?

Both must be present for the Excise Officer to invoke this power. The proviso extends the limitation period from six months to five years, so it must be strictly interpreted. Initially, the Department must prove these conditions exist.?

Once proven, if there's evidence the appellant is guilty of such actions, the proviso is applied more liberally.

Part-2: Tomorrow