TMI Blog1998 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice dated 23-12-1980 was issued referring to the facts and alleging suppression of facts with intent to evade duty and proposing demand of differential duty in respect of the period from March, 1976 to March, 1978. A similar notice was issued on 17-3-1981 for the period from April, 1979 to March, 1980. The appellant resisted the notices contending that there was no suppression of any fact as the appellant had in 1978 sought permission for relaxation of Rule 51A and the Collector in 1989 had accorded such permission and the notices were barred by time. The reply also stated that the question of value of comparable goods did not arise as the purchased waxed wrapper paper was not manufactured by the same type and size of unit. Adjustment towards post manufacturing expenses was also claimed. Filing of price lists under Rule 6(b)(ii) of the Rules was justified. Overruling these contentions, the Additional Collector confirmed the demand and imposed penalty of Rs. 2,000.00. This order is now challenged. 2. Learned counsel for the appellant urged three contentions before us, One on the sustainability of the order, the second on the show cause notices being barred by time and the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice relying on the decision in Girwar, 1982 E.L.T. 563, Bhagwandas S.Tolani Agarwal v. B.C. Agarwal, 1983 (12) E.L.T. 44 and J.K. Rayon, 1994 (70) E.L.T. 132 (Tribunal). 4. In Bhagwandas S. Tolani v. B.C. Agarwal, 1983 (12) E.L.T. 44 (Bom. H.C), adjudication order was not passed even after a lapse of eleven years after the issue of the show cause notice. The High Court held that the department was not entitled to take up old matters in that manner, though the position may be different if there had been default on the part of the assessee which resulted in the long delay. In J.K. Rayon, 1994 (70) E.L.T. 132 (Tribunal), the Tribunal purporting to follow the above decision held that adjudicating order passed after a delay of eleven years was liable to be set aside. 5. Shri M. Ali, JDR placed reliance on the decision in the case of UOI v. Kirloskar Pneumatic Company, 1996 (84) E.L.T. 401 (S.C.). In this case; writ petition was filed claiming refund of excess duty paid. The High Court passed an order directing the assessee to file an application for refund before the statutory authority within two weeks and directed the statutory authority to dispose of the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government of India relied on by the appellant set aside the adjudication order on the ground that long delay in passing the order deprived the assessee of an opportunity to properly explain his case. This, in our opinion cannot be a matter of assumption or presumption; it would be a matter of plea and proof. There may be cases where long delay in taking up a case for adjudication and in completing the adjudication proceedings may amount to violation of principles of natural justice, inasmuch as such long delay may deprive the assessee of marshalling documents or witnesses as such documents or witnesses might have disappeared or ceased to exist. In such cases, the order would be liable to be set aside not on the ground of long delay but on the ground of violation of principles of natural justice occasioned by long delay. It is for the Tribunal to satisfy itself that there was violation of principles of natural justice and prejudice caused to the assessee. It requires to be reiterated that this would be the position so far as the Tribunal is concerned, since the Tribunal is not clothed with jurisdiction similar to the writ jurisdiction of the High Court. It appears to us that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the manufacturing process, difference in quality and packing. The Tribunal noted that the expression comparable goods has not been defined in the Act or the Valuation Rules and the fact that the two foods are known by the same name or by the same genre does not mean that they are closely comparable goods and even if they are assumed to be so, all relevant differences as far as possible, which can be envisaged should be recognised and the adjustment regarding those differences must be made in the value of the goods. It was observed that the differences pointed out are genuine and have a bearing on the value of the goods and should have been taken into account by the Collector and the price of Sodium Silicate manufactured by other persons cannot he mechanically adopted. It was further observed that in the absence of definition of comparable goods , it cannot be expected of any assessee to know about the comparability of goods. vis-a-vis his own goods and Rule 6(b)(i) of the Valuation Rules casts a burden on the proper officer to approve the assessable value and it is for him to find out whether there are any goods comparable to the goods of the assessee and in arriving at the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before effecting the purchase and, therefore, would be in a position to know whether they were similar or not, even in the absence of definition of comparable goods . We, therefore, agree with the adjudicating authority that the entry N.A. ; in the price lists against comparable goods has not been properly explained by the appellant and may amount to deliberate suppression of facts. 11. Learned counsel for the appellant referred to paragraph 1 of the reply to the show cause notice dated 10-4-1981 referring to the appellant s letter dated 17-11-1978 seeking relaxation of Rule 51A of the Rules and the Collector s letter dated 29-11-1979 granting such relaxation. According to him, relaxation was sought in respect of wrapping paper purchased from outside and brought into the factory for use and, therefore, both in November 1978, and November, 1979, the department was aware of the fact that the appellant was purchasing wrapping paper. We do not find any reference to this contention in the impugned order. Appellant has not made available copies of these letters. It appears to us that the adjudicating authority should have procured copies of these two documents and considered the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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