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TMI Blog1993 (4) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Application was granted. For statistical purposes, the application was to be treated as dismissed and the same was pronounced in the open Court. Thereafter the hearing in respect of Miscellaneous Application No. E/365/89-A i.e. application for grant of permission for admission of additional evidence was taken up. Shri A.K. Jain, learned Advocate pleaded that there was fire in the factory. He referred to page 449 of the paper book wherein para No. 3 which is letter dated 13-9-1985 addressed to the Superintendent of Central Excise, Bangalore in para 3 there is mention of the fire accident which took place on 22-10-1984 and all the records pertaining upto that date were burnt and destroyed and intimation in regard to the same was given to the department as well as to the Income Tax department as well commercial authorities and as such the question of producing records for the period from 1-4-1982 to 9-6-1982 could not be complied with and in regard to invoices pertaining to the period from 19-12-1984 to 31-3-1985. 2. Learned Advocate pleaded that the date of seizure is 19-12-1984 and 21-12-1984 whereas there was fire on 22-10-1984 viz. before the seizure. Learned Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission for admission of the additional evidence. Shri Prabhat Kumar, learned DR in reply again opposed the permission for grant of admission of the additional evidence. After hearing both sides the Bench had reserved the Order with a direction that the same will be decided alongwith the decision in the main appeal. 3. Shri A.K. Jain, learned Advocate, who has appeared on behalf of the appellant argued on merits. He narrated the brief history. The brief facts of the case are that the appellants are engaged in the manufacture of latex foam sponge product falling under TI 16A(1) of the erstwhile Central Excise Tariff of Schedule I to the Central Excises and Salt Act, 1944 having two units one functioning at No. 122, Industrial Suburb, Rajajinagar, Bangalore -10 and the other at No. 28, 11, Tumkur Road, Yeshwanthpur, Bangalore - 22. Intelligence was gathered by Preventive Officers that M/s. Regal Rubbers were suppressing the real value of the goods manufactured by them from the department with an intention to evade payment of Central Excise duty. To unearth the true nature of their clandestine activity, the officers visited their factory and their administrative office situated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm is 63% and Smt. Shyam Sundar s share in firm is 37%. The firm M/s. Anand Rubbers came into existence in April, 1984 and the partners were Shri Balram U. Richani, Shri Shyam Sundar U. Richani and Smt. Janaki Bai T. Nagpal. Shri Balram U. Richard s share is 0.58 p. in a rupee, Shri Shyam Sundar U. Richani s share is 0.37p. in a rupee and Smt. Janaki Bai T. Nagpal s share is 0.05 p. in a rupee. The period in dispute is 1-4-1982 to 17-12-1984 and the classification list was filed and approved. RT returns were filed and distance of M/s. Regal Rubbers and Anand Rubbers is about 9 kms. Show Cause Notice is dated 12-6-1985 issued by the Assistant Collector answerable to Assistant Collector. Shri. A.K. Jain, learned Advocate pleaded that the main allegations are suppression of sizes and suppression of the correct value. He referred to page No. 475 and 480 of the paper book which is reply to Show Cause Notice. He referred to the Order-in-Original passed by the Assistant Collector which appears on page No. 564 of the paper book. He pleaded that the Order is dated 30-9-1985. Last date of hearing before the Assistant Collector is 4-9-1985. Shri Jain argued that the Assistant Collector impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. Mills Co. Ltd. -1978 (2) E.L.T. (J 399) (S.C.) Indian Granite Ltd. v. C.C.E. - 1988 (17) ECR 678 (CEGAT-SB-D) (Para 8) Taxmaco Ltd. v. C.C.E. -1991 (51) E.L.T. 551 (Tribunal) Unichem Laboratories Ltd. v. U.O.I. - 1990 (29) ECR 115 (Bombay) Maduranthagam Coop. Sugar Mills v. C.C.E., Madras - 1985 (22) E.L.T. 578 (Tribunal) Bhor Industries Ltd. v. U.O.I. - 1991 (51) E.L.T. 284 (Bombay) 1990 (47) E.L.T. (A 194). Shri A.K. Jain argued that demand is hit by limitation and extending of limitation cannot be invoked. He pleaded that Department had full knowledge of this. He argued that classification list was duly approved. Shri Jain argued that there is no evidence of flow of funds between the two firms. Both the concerns are independent to each other. Manufacture of appellants product are subject to various processes. It is not done in the factory. He argued that the extended period of limitation cannot be invoked. Shri A.K. Jain argued that the revenue did not modify the price lists and as such the demand is bad. M/s. Regal Rubbers and M/s. Anand Rubbers are not related persons because there was no mutuality of interest and there was no flow back of any funds between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, Karaikudi that they are despatching 300 no. of 1143 length and 200 nos. of 826 mm length seats through M/s. Anand Rubbers against the Purchase Order No. 1896 dated 28-5-1984. M/s. Anand Rubbers have raised the invoice No. 210 dated 6-9-1984 for supply of 288 seats of 32" by quoting the said purchase Order number. Shri Prabhat Kumar, learned DR pleaded that M/s. Regal Rubbers are despatching the goods directly and M/s. Anand Rubbers are merely raising the invoice. He referred to para No. 34.1, 34.3, 33.8 of the Order-in-Original. 8. Now Shri Ram Parkash, learned SDR has appeared in place of Shri Prabhat Kumar, learned SDR. He again narrated the facts. He pleaded that res judicata does not apply if the facts are different. In support of his argument, he cited the case reported in 1986 (23) E.L.T. 3. He referred to the decision in the case reported in 1986 (24) E.L.T. 186. He also referred to the following decision: 1986 (26) E.L.T. 913 (Allahabad). He also referred to para No. 34.3 of the Order which appears on page No. 102 of the paper book and also para No. 34 on page No. 102 of the order-in-Original. He referred to page No. 127, 128 and 130 of the Order-in-Original. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent grades by the petitioners. 7. Letter dated 31-12-1980 addressed to the Collector of Central Excise, Bangalore. 8. Letter of Asstt. Collector Central Excise acknowledging the Petitioners letter dated 31-12-1980. 9. Letter of the Supdt. Central Excise, dated 29-7-1982. 10. Extract of the P.L.A. 11. G.P.1s 12. Daily Inspection Reports 13. Pre-Budget and Annual Stock taking Reports duly verified and found in order by the Central Excise officers. 14. Challans. The appellant has filed an affidavit duly sworn before Notary Public in support of the grant of permission for admission of additional documents. We have already mentioned that the learned DR does not object to the grant of the permission for admission of the document mentioned in serial No. 1 viz. Extract from a Book titled Rubber Technology and Manufacture." However, he has objected to the admission of other documents. It is an admitted fact that there was a fire in the factory of the appellant on 22-10-1984. The relevant portion of the letter dated 30-9-1985 written to Superintendent, Central Excise by the appellant is reproduced below :- ........As regards inter-state invoices of Regal Rubbers fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal) Rules, 1963, if the Tribunal requires any document to be produced or affidavit to be filed to enable it to pass orders or for any other substantial cause, it may allow the document to be produced or the affidavits to be filed. Even if there was a failure to produce the documents before the Income-tax Officer and the Appellate Assistant Commissioner, the Tribunal has the jurisdiction in the interest of justice to allow the production of such vital documents. The assessee sold several plots of land to various parties and the value of the properties shown in the documents of sale was Rs. 2,58,338. The Valuation Officer of the Department estimated the market value of the properties sold at Rs. 4,17,000 and, therefore, the Income-tax Officer determined the value of the properties sold at Rs. 4,17,000 under Section 52(2) of the Income-tax Act, 1961. As the cost of acquisition of the properties was Rs. 1,40,934, the difference of Rs. 2,76,066 was brought to tax as capital gains. On appeal, the Appellate Assistant Commissioner held that it had not been established that anything more than the disclosed consideration had been received by the assessee and therefore, directed the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r :- 4. We have considered this request for filing additional evidence. We find that these documents are contemporaneous and also throw some light on the date when the respondent company came into existence - a point which is vital to the decision in this appeal. We therefore, allow this application and take the additional documents on record. Hon ble Supreme Court in the case of Sandhya Rani Sarkar v. Sudha Rani Devi AIR 1978 SC 537 held that the word sufficient cause should be liberally construed so as to advance substantial justice when no negligence or any inaction for want of bona fide is imputable. In the matter before us, the documents are correspondence, departmental letters, extract from PLAs, GP1s, daily inspection reports and pre-budget and annual stock checking reports and others. There was fire in the factory on 22-10-1984. Normally, the appellant should have produced these documents at the time of hearing, but there was fire in the factory. Accordingly, we are of the view that the appellant was prevented by sufficient cause for the non-production of the additional evidence during the adjudicating proceedings. The appellant had made a prayer for Cross Examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of disposal of the appeal. In these circumstances, we hold that additional evidence has to be admitted and there was denial of principles of natural justice. The adjudicating authority has to look into the additional evidence filed by the appellant. The Tribunal in the case of Econthenn Systems Pvt. Ltd. v. Collector of Customs reported in 1991 (55) E.L.T. 382 (Tribunal) at para 11 has held as under :- 11. Now corning to the merits of the case, the department had relied on a telex dated 27th October, 1987 and the appellants had asked for the cross-examination of Prabhat Kumar which was not granted to the appellants and which has not been referred to in the show cause notice. The adjudicating authority has not mentioned the same. The appellants had pleaded for the cross-examination of Shri Prabhat Kumar which was not granted. We are of the view that there was denial of principles of natural justice. The issues to be decided in this appeal are :- Whether the goods imported are the dielectric components for heat tracing system falling under OGL, appendix 6, list 8 Part I, item 476 of the Import and Export Policy 1985-88 or cables? The revenue s main reliance is on the DGTD o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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