R.M.S. Khandeparkar, J. (President)

1. Heard the learned Advocate for the appellants and the DR for the respondent. This is an application for production of additional evidence at the appellate stage. By the present application, the appellants are seeking to produce four invoices in support of their defence. It is their contention that they could not produce the said invoices before the adjudicating authority as the said invoices were in the possession of Prop. of M/s. New Vision and she was reluctant to produce the same at the relevant time.

2. It is further contention on behalf of the appellants that considering the allegation that M/s. New Vision was a dummy unit of the appellants and in order to counter the same, it is necessary to produce the said invoices which could disclose that the said firm was not only dealing with the goods manufactured by the appellants but also by other manufacturers.

3. To the specific query as to whether there was specific defence raised before the adjudicating authority that M/s. New Vision was dealing with the products manufactured by other manufacturer also, the ld. Advocate for the appellants submitted that they had no opportunity to file their reply to the show cause notice as the resumed documents were not supplied to the appellants in spite of specific request in that regard under letter dated 5-8-2007 and that the appellants have raised specific ground in that regard in the memo of appeal. It is further contention on behalf of the appellants that in order to establish that M/s. New Vision was not a dummy unit of the appellants, the said documents are very relevant and, therefore, they may be allowed to produce the same.

4. The request for allowing the appellants to produce additional evidence on record is objected to on behalf of the department and the DR has submitted that the appellants have not shown any reasonable cause for non-production of such documents before the adjudicating authority. He has further submitted that all the relied upon documents were furnished to the appellants along with show cause notice.

5. The letter dated 5-8-2007, copy of which is found on record reads thus:-

In order to prepare our reply to the show cause notice issued to us, we need the documents/records resumed by C. Excise (Anti-Evasion) officers. Therefore, kindly order for releasing the un-relied upon records/documents.

In case, Sales and Purchase bills are not being returned now, kindly provide us copies of the same.

We request to treat the matter as most urgent as the reply to the show cause notice is pending"

6. It is pertinent to note that the show cause notice was issued on 16-11-2006, the above letter was written on 5-8-2007, besides on the face of it, it refers to un-relied documents. By no stretch of imagination, non-receipt of un-relied upon documents can be a justification for not filing the reply to the show cause notice.

7. It is also submitted that the un-relied documents came in possession of the appellants on 13-9-2007 just before passing of the impugned order. It is pertinent to note that proceedings were initiated not only against the appellants but also against the Prop. of M/s. New Vision and it was party to the adjudication proceedings. No explanation is forthcoming as to why the documents now sought to be relied upon were not produced during the adjudication proceedings either by the appellants through the Prop. of M/s. New Vision or by the Prop. of M/s. New Vision. It is also pertinent to note that the Prop. of M/s. New Vision had been penalized but no appeal has been filed against such order.

8. As rightly pointed out by the DR, the application did not disclose any justification for non-production of the said documents before the adjudicating authority or even before the Commissioner (Appeals). Apparently, the attempt is purely after thought.

9. There is no explanation forthcoming as to what prevented the appellants from seeking assistance of the adjudicating authority for issuance of a summons to the Proprietor of the said firm to produce such documents if they were so relevant on the point in relation to the appellants case. For the reasons stated above, in the absence of sufficient cause being shown for non-production of the document in question either before the adjudicating authority or even before the lower appellate authority, and no sufficient cause being shown for delay in production of the documents, nor relevancy established, the application is hereby dismissed.