Per T.K. Jayaraman:

M/s. Paro Food Products, 19-4-280/1, Mir Sagar Village, Mir Alam Tank Road, Rajendranagar Mandal, R.R. District (A.P.), (herein after referred to as 'appellant') are job workers manufacturing biscuits for M/s. Adarsh Industries, Hyderabad. The issue is with regard to the valuation of the goods manufactured by the appellants for the period from 22.11.92 to 31.3.96. The adjudicating authority in the impugned Order No. 4/99 dated 17.1.2000 has confirmed the demand of Rs. 48,46,194/-. Further a penalty of Rs. 15,00,000/- has been imposed under Rule 173Q (1). The plant and machinery of the appellant have been confiscated under Rule 173Q (2). An option to redeem the plant and machinery has been given on payment of fine of Rs. 2,00,000/-. The appellant has strongly challenges the finding of the adjudicating authority.

2. Shri Laxminarayan Goyal, learned Consultant and Shri T. Ramesh, learned Advocate appeared on behalf of the appellants and Shri L. Narasimha Murthy, learned SDR appeared on behalf of the Revenue.

3. The learned Consultant brought to the notice of the Bench that the same issue has been decided by the Assistant Commissioner in his adjudication Order No. 60/97 dated 11.8.97 for the same period and for the same amount. In these proceedings, the Assistant Commissioner, inter alia, dropped the demand on the ground that the price lists which have been approved by the Department are not provisional but final. He was not in a position to confirm the demand. The Revenue was aggrieved over that portion of the Assistant Commissioner's order dropping the demand and has gone in an appeal to the Commissioner (Appeals) to declare that price lists are only provisional. The proceedings before the Commissioner (Appeals) have not been decided. In these circumstances, it was not correct, urged the learned Advocate, that the Commissioner should have issued another show cause notice for the same amount and for the same period by invoking longer period.' He said that the principle of res judicata is clearly applicable to the present case. He relied on a number of decisions. He maintained that a second show cause notice for the extended period cannot be issued for the same amount, for the same facts and for the same period. It was further urged that the parallel proceedings on contradictory ground is bad. The case before the Commissioner (Appeals) is for heating the price lists as provisional and the present case before the Tribunal is for suppression of facts. The grounds are in contradiction in each other. He also cited a number of case laws to show that no demand is sustainable merely on the basis of balance sheet. He stated that no statement has been recorded either from the appellants' principal nor the appellants. Further he pleaded that as per Ujjagar Print case, 1991 (55) ELT 486 (Bom.-HC), cost accountant certificate can be relied and not the balance sheet of the customer.

4. The learned SDR submitted that the Assistant Commissioner dropped the proceedings on the ground that he was not competent to decide the matter invoking extended period. He did not drop the proceedings on merit. Under these circumstances, there is nothing wrong in the Commissioner issuing a show cause notice invoking extended period on account of suppression of facts. Hence, he urged the Bench to uphold the Order-in-Original.

5. We have gone through the records of the case carefully. The Assistant Commissioner dropped the proceedings on the ground that the price lists were not provisionally approved, but have become final. There is no indication from the records that the appellants had suppressed any facts. In fact, based only on the balance sheet of the appellants' principal the demand was made. In the second show cause notice issued by the Commissioner, the amount of demand is exactly same for the same period. This demand is also based on the balance sheet of the principal. In other words, after the conclusion of the first proceedings initia