ORDER
G.A. Brahma Deva, Member (J)
1. This appeal is filed by the Revenue. When the matter was called none appeared on behalf of the Respondents. However, there was a request from the Respondents for an adjournment.
2. On going through the issue involved herein, we find that the matter itself can be disposed off on limited issue even in their absence. Accordingly we proceed to pass this order after hearing Shri Narasimha Murthy, JDR for Revenue.
3. The issue is whether passenger motor vehicle attracts duty @ Rs. 8,400/- or Rs. 4,000/- and goods transport vehicle @ Rs. 4,200/- or Nil under Notification No. 162/86-Central Excise, dated 1-3-86 in the facts and circumstances of this case. The Commissioner after considering the facts and circumstances of the case has accepted the arguments put forth by the assessee in deciding the issue in favour of the assessee relying upon the decision of the Supreme Court in the case of Decent Dyeing Company [1990 (45) E.L.T, 201 (S.C.)] and held that the burden is on the Department to prove non-payment of duty and accordingly dropped the proceeding against the appellants. He also observed in the order that the Department has not made any investigation at the suppliers end to ascertain whether the duty on the chassis was paid. The onus of proof lies on the Department. No evidence is forthcoming on record to show that the Department has discharged that onus. Accordingly he held that it is not only unfair but illegal to recover the duty from the appellants, Fabricon Pvt. Ltd.
4. The Department has come in an appeal on the ground that where the assessee claimed lower rate of duty on motor vehicle i.e Rs. 4,000/- on passenger motor vehicle and NIL on goods transport vehicle, it is their responsibility to prove beyond doubt that the chassis used suffered duty @ 20% adv. + Rs. 4,500/-. According to the Department in the absence of discharge of burden by the assessee, the other effective rates would be applicable in terms of Notification.
5. On a careful consideration of the submissions made by the both sides and perusal of records, we find that the Commission has arrived at the conclusion based upon the material evidence on record particularly gate passes produced by the party. He clearly held that the Department has not made any investigation at the suppliers end to ascertain whether the duty on the chassis was paid or not. The burden lies on the Department as it was rightly analysed by the Commissioner in the impugned order. No evidence has been placed on record that the Department has discharged the burden. This cannot be shifted to the assessee. In the absence of such evidence the Commissioner is just right in observing that it is not correct to recover the duty from the assessee. He also relied upon the judgment of the Supreme Court while arriving at the decision. The Departmental Representative tried to distinguish the ratio of the decision of the Supreme Court to the facts of this case but in vain. In these facts and circumstances, we do not find any flaw in the impugned order and accordingly we uphold the impugned order. In the result, the appeal is dismissed.
