JUDGMENT : We have heard the learned Senior Counsel for the assessee and the learned Additional Solicitor General for the Revenue. We have also perused the order of the Tribunal (CEGAT) dated 7th April, 1988. We find from the order that the Tribunal refused to consider the affidavit of Mr. Y.B. Sodawala, Partner of M/s. Janta Soft Drinks, Bombay, as well as the invoices appended thereto on the sole ground that it was filed after a lapse of almost two years. The delay may be a factor which may have some relevance so far as the probative value to be attached to the statement of the deponent is concerned. It was, however, not correct on the part of the Tribunal to totally brush aside the affidavit and the invoices without going into the question whether the invoices were genuine and correctly reflected the relations between the parties. If the Tribunal thought it necessary it could have called the deponent for cross-examination or allowed his cross-examination by the Revenue. The statement of this very person was recorded in response to the summons issued under Section 14 of the Act and he had stated in the statement that he was a dealer in respect of the beverages manufactured by the appellant before us and that he paid the price at the rate of Rs. 11.70 per crate as against which he received a commission of Rs. 1.20 per crate. From this statement and the use of the expression `commission' an inference came to be drawn that the relationship was not of a principal and principal or that M/s. Janta Soft Drinks was not an independent agent. The question in regard to the inter se relationship between the appellant and M/s. Janta Soft Drinks had to be determined after taking into consideration the evidence on record and in particular what the invoices reflected. We are, therefore, of the opinion that the Tribunal was not right in brushing aside the affidavit solely on the ground of delay. What the Tribunal should have done was to ascertain the relationship from the invoices keeping in view the averments in the affidavit of the deponent whatever their probative value be. The deponent has tried to explain the relationship between the parties and the commission paid on crate basis. Whether the explanation is genuine or not would depend on the assessment of evidence. The deponent has tried to explain the relationship between the parties and the commission paid on crate basis. Whether the explanation is genuine or not would depend on the assessment of evidence. Having regard to all the attendant circumstances, the sales come to about 5.58 per cent of the total sales which, in our view, in quite substantial. We are, therefore, of the opinion that having regard to the above, the proper course would be to remit the matter to the Collector of Central Excise, Bombay, for a fresh consideration after allowing the affidavit and the documents appended thereto to be taken on record. As pointed out earlier the Revenue will have a right to cross-examine the deponent if they so desire. The question of penalty would also depend on the ultimate outcome of the final adjudication.