2003 PLP (Trib (PTD)

109375 2 08/97 13132938 84972057 20465 3 09/97 11229745 11437343 406148 4 10/97 6873815 2825916 84547 5 11/97 16531567 16453668 37029 6 12/97 2481198 2206633 130777 223522 548819"

3. The allegation against the appellant was that it had claimed input tax adjustment in respect of supplies which were exempt under the provisions of the Sales Tax Act and had thus violated S.R.O. No.698(I)/96, dated 22-8-1996. The appellant resisted the, show-cause notice by claiming that the inputs claimed related to tax paid supplies.

4. Para 3 and 4 of the impugned order show that the case was pending with the then learned Additional Collector Sales Tax who had issued the notice but thereafter it was transferred to the learned Additional Collector (Adjudication), Lahore in April, 2002 who issued hearing dates for 29-8-2001, 5-9-2001 and 18-9-2001.

5. According to para 5 none of the parties appeared before the learned Adjudicating Officer on any of these dates and he decided the case ex parte on the basis of available record by holding the appellant responsible for payment of evaded sales tax amounting to Rs.5,48,891 alongwith Additional Tax and penalty of Rs.27,

441. Hence, this appeal.

6. During the course of arguments on 25-10-2001 learned counsel for the appellant seriously asserted that none of the notices alleged to have been sent to the appellant for 29-8-2001, 5-9-2001 and 18-9-2001 were ever served on it and that the impugned order was, therefore, an ex parte order which was passed without hearing the appellant. In order to verify the real position, the learned D.R. was asked to make available the relevant record to prove that these notices were actually received by the appellant and it deliberately did not put in. appearance before the learned Adjudicating Office. The learned D. R: failed to produce the said record on 11-12-2001, 27-2-2002 and even today. The basic law is that if a party fails to produce the record which it claims to be in its possession then the presumption is raised against it and the presumption is that if the said record was produced then it would go against it. We can, therefore, safely infer that either the department is not in possession of any of these notices or is deliberately avoiding to produce the same before the Tribunal. In this back ground of facts it can rightly be assumed that these notices may not have been issued for 29-8-2001. 5-9-2001 and 18-9-2001 and may not have been served on the appellant. This being the position, the impugned ex parte order militates against the basic law that no one is to be condemned unheard. The result is that the impugned order is set aside and the case is remanded to the learned Adjudicating Officer for a fresh decision in accordance with law after hearing the parties and after receiving the evidence which they may like to produce. C.M.A.706/Tax (Trib.) Case remanded.