TMI Blog1984 (5) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/- per kg. claiming benefit of notification No. 125 of 1975. The differential duty demanded was at Rs 24/- per kg. leviable on the base yarn. They had denied their liability but the demand had been confirmed by the Asstt. Collector under his order dated 8-1-1983 and the same had been confirmed by the Collector (appeals) under his order dated 27.8.83. This appeal is against the order of the Collr. (Appeals). 2. Shri Harbans Singh, Advocate for the appellant contends that duty on base yarn is payable by the manufacturer of the base yarn only and the burden of showing that the said duty had not been paid by the manufacturer is on the department and without reference to this principle the lower authorities had held that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was payable under Tariff Item 18(ii). That reads that rate of duty payable on textured yarn produced out of base yarn is the duty for the time being leviable on the base yarn, if not already, paid plus Rs. 20/- per kg. Under notification No.125/75 dated 12.5.75, the duty was reduced to the duty for the time being leviable on the base yarn, if not already paid, plus Rs. 10/-per kg. Admittedly, the appellant had paid duty at Rs. 10/- per kg. and had been allowed to clear the goods. The demand for differential duty by way of duty payable on the base yarn is now in dispute. 5. The same question had arisen for consideration in appeal No. ED(SB) 2804/83-D and under judgment dated 17.4.84 and this Tribunal had decided that in such cases the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessor. Therefore, the authorities would be entitled to claim duty inclusive of the duty leviable on the base yarn only on proof that the duty on the base yarn had not been already paid. Therefore, the onus of proving that duty had not been paid on the base yarn would be on the department. It would not be the burden on the appellant to prove that the duty on the base yarn had been already paid. 7. In these circumstances, the appellant would be well justified, as pointed out in Sulekh Ram s case, in presuming that base duty had been already paid by the manufacturer. In this view it was really not necessary for the appellant to produce proof of payment of payment of base duty by the manufacturer. It may be seen that at least when the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the base duty. In view of this clarification, we consider that no useful purpose would be served by remanding the matter to the lower authorities as suggested by Shri Harbans Singh. 9. On a careful consideration of the submissions on both sides, we therefore hold that the demand of differential duty from the appellant cannot be upheld. Accordingly, we allow this appeal and set aside the impugned demand with consequential relief to the appellant. 10. So far as the cross objection filed by the department, it is seen that no relief had been claimed thereunder, the same containing merely the arguments for the department and ending with the prayer that the order of the Collector (Appeals) may be upheld. In the circumstances there is really ..... X X X X Extracts X X X X X X X X Extracts X X X X
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