PRAKASH KRISHNA, J. ( 1 ) THE applicant, a public limited company, incorporated under the Companies Act, is carrying on the business of manufacture and sale of Vanaspati, refined oil and soap etc. By means of the present revision filed under Section 11 of U. P. Sales Tax Act, (hereinafter referred to as the Act), the applicant has challenged the order dated 7thof October, 1994 passed by the Trade Tax tribunal, Ghaziabad. ( 2 ) THE case has a checkered history and the dispute relates to the assessment year 1971-72 (U. P.)The Sales Tax officer, Ghaziabad rejected the taxable turnover and estimated it at Rs. 12,37,00299/ -. The assessment order was partly modified in appeal by the Assistant commissioner (Judicial) by reducing the turnover and fixing it at Rs. 12,36,37,357/ -. In further appeal, the Tribunal by its order dated 30. 1. 1985 allowed the appeal filed by the dealer applicant and remanded the matter back to the Assessing Authority with certain directions. The directions were to the effect that the dealer applicant be permitted to cross-examine the Lucknow dealer namely M/s. Ram Rikh Das Roop Chandra, The Assessing Authority was directed to produce the said dealer with record. The relevant portion of the operative order which has some relevancy, in as much as there is a dispute between the parties about its compliance of the directions, to the , ultimate decision of the present revision, is being reproduced below: "atah yah vad kar nirdharan adhikari ko uprokta nirdeshon ke anusar punah kar nirdharan karane ke liye vapas kiya jata hai. Vyapari dwara dilai gayi freight ki dhanrashi uprokta vivechana ke anusar kar yogya dhanrashi mein sharnil nahin ki jaye gi. Kar nirdharan adhikari Lucknow ke vyapari ko appealkarta ke samaksha sambandhit ambhilekhon sahit cross examination karane ke liye prastut karein ge. Natha unake sambandh mein vyapari se spastikaran lete hue apana nirnay dein ge. Agar kar nirdharan adhikari Lucknow ke ukta vyapari ko appealkarta ke samaksha cross examination karane ke liye prastut karane mein asmarth rahate hain toa is samandha mein vyapari ke viruddha jo tathya vipareet mane gaye hain unase koi pratikool nishkarsh nikalana uchit nahin hoga". ( 3 ) THE Assessing Authority in compliance of the aforesaid direction summoned M/s. Ram Rikh das Roop Chandra, Lucknow, along with account books. Shri Naresh Kumar one of the partners of the firm appeared before the Assessing Authority on 16. ( 3 ) THE Assessing Authority in compliance of the aforesaid direction summoned M/s. Ram Rikh das Roop Chandra, Lucknow, along with account books. Shri Naresh Kumar one of the partners of the firm appeared before the Assessing Authority on 16. 1. 1986. He was cross- examined by the dealer applicant. Thereafter the assessment order was refrained by the Assessing Authority and the taxable turnover was fixed at Rs. 12,28,44,553-60 by the order dated 29thof March, 1986. This order was confirmed in appeal by the Deputy Commissioner (Appeals) by the order dated 22nd of January, 1989. The dealer opp. party filed a second appeal before the Tribunal which came up for consideration before two Members Bench of the Tribunal. Since there was difference of opinion in between the two members of the Tribunal, the matter was referred to a third member, who agreed with one member and consequently appeal was dismissed on 7th of october, 1994, by following majority view. Aggrieved against the aforesaid order the present revision has been filed on behalf of the applicant. In the memo of revision the following questions of law have been raised: 1. Whether on the facts and in the circumstances of the case the Tribunal and the authorities below were justified in law in drawing adverse inference against the applicant on the basis of entry made in Exht-15 seized from the premises of M/s. Ram Rikhdas Roop Chandra of Lucknow even though the said Exht-15 was not confronted to the applicant for cross examination inspite of the direction given by the Tribunal earlier in its order dated 30thjanuary, 1985? 2. Whether on the facts and in the circumstances of the case and even though nothing adverse was stated against the applicant" by Ram Naresh, partner of Lucknow party, still the Tribunal was justified in law in drawing adverse inference against the applicant on the basis of entry made in the books of account of M/s. Ram Rikhdas Roop Chandra, Lucknow? 3. 3. Whether on the facts and circumstances of the case, even though Naresh Kumar partner of lucknow party having been appeared before the assessing authority, who was cross examined by the applicant and he having deposed the facts that the said Exht-15 has no concern with the applicant nor there is any thing written against the applicant, still the Tribunal and the authorities below were not justified in law in drawing adverse inference against the applicant on the basis of entry made in the books of account of M/s. Ram Rikhdas Roop Chandra, Lucknow? 4. Whether on the facts and in the circumstances of the case even though the assessment order was barred by limitation, still the Tribunal was justified in law in upholding the same? ( 4 ) HEARD the counsel for the parties and perused the record. The main thrust of the argument of the applicant in the present revision is that there was noncompliance of the earlier order passed by the Tribunal. Shri Naresh Kumar. was produced by the department for cross examination but he did not bring the account books along with him. The opportunity to cross examine Shri naresh Kumar, in absence of relevant account books was an empty formality. Elaborating the argument it was |submitted that the burden was laid on the department under the remand order, to produce the partner of the firm with the relevant account books and the department has failed to discharge the said burden. Therefore, no adverse inference could be drawn on the basis of the entry made in the account books Of the Lucknow party, specially in the light of order dated 30. 1. 1985 passed by the Tribunal. ( 5 ) IN contra, the learned standing counsel strenuously contended that photocopy of Exhibit 15 was very touch available and file department produced Shri Naresh Kumar one of the partners of lucknow party. In this view of the matter it is not correct to say that proper opportunity was not given to the applicant or there is noncompliance of the direction given by the Tribunal in its order dated 30thof January, 1985. The department did what was possible for it. ( 6 ) THE dispute relates to the assessment year 1971-72. In this view of the matter it is not correct to say that proper opportunity was not given to the applicant or there is noncompliance of the direction given by the Tribunal in its order dated 30thof January, 1985. The department did what was possible for it. ( 6 ) THE dispute relates to the assessment year 1971-72. The department rejected the account books of the applicant mainly on the basis of certain entries recorded in the account books of m/s. Raro Rikh Das Roop Chandra. The adverse inference was drawn against: the applicant on the basis of Rokar Khata i. e. Exhibit 15. According to the department, the statement, of Naresh kumar was also earlier recorded by the Sales Tax Officer (SIB) in survey dated 27thof november, 1973. In the statement he had stated that 5-A, 6,7,8,9 and 10 are account of vanaspati difference. The purchases of Vanaspati are recorded on one side and on the other side (credit side) sales along with premium have been recorded. The money realized by way of premium on account of sale of Vanaspati has not been recorded in the regular account books. The premium paid by it in the purchase of Vanaspati has been recorded towards the name side and the premium which has been received by sale of Vanaspati has been recorded towards deposit side. Against entries of Rs. 1,062/- dated 23. 110. 1971, Amrit Vanaspati Ghaziabad towards premium of Tin 531 has been written which means that the said amount was given to amrit Vanaspati Ghaziabad for 531 Tin. In further statement of Naresh Kumar recorded in the survey dated 27. 11. 1973 he has explained the various entries in the like manner. The department has drawn an inference of concealment of turnover against the applicant on the basis of the account books of M/s. Ram Rikh Das Roop Chandra and the statement of its partner Shri Naresh kumar. ( 7 ) A copy of the cross examination of Shri Naresh Kumar recorded subsequently after remand has been annexed as annexure-2 to the memo of revision. It has come on record that Shri Naresh kumar initially did not appear in spite of service of summons and the Assessing Authority had to issue warrant for his appearance. Shri Naresh Kumar has stated, besides other things, that he has not brought the relevant account books as they are not traceable. It has come on record that Shri Naresh kumar initially did not appear in spite of service of summons and the Assessing Authority had to issue warrant for his appearance. Shri Naresh Kumar has stated, besides other things, that he has not brought the relevant account books as they are not traceable. It may be noted here that the statement of Shri Naresh Kumar was recorded on 16thof January, 1985 with respect to the account books relevant to the assessment year 1971-72. He has further stated that his firm has been closed and it is not possible to trace out the 15 years old record of the firm in such a short notice. He further stated that the assessment of his firm has become time barred also. ( 8 ) THE questions No. 1,2 and 3 quoted in the earlier part of this judgment are interconnected and were argued in that manner. The department produced Naresh Kumar in compliance of the order passed by the Tribunal. The question arises whether the order of the Tribunal has been complied with by the department in its letter and spirit or not. It is not in dispute that the assessee applicant has business relations with M/s. Ram Rikhdas Roop Chandra, in whose account books the entries in question were found. All the three authorities below after making analysis of the statement of naresh Kumar have come to conclusion that the witness has been won over by the applicant. Shri Naresh Kumar did not appear in response to the summons which was duly served. He appeared when warrant was issued compelling his attendance. He has not disputed that his statement was also recorded earlier by the Sales Tax Officer (SIB ). In that statement the witness has clearly stated that premium amount was given to M/s. Amrit Vanaspati and Company, the applicant. The witness Naresh Kumar has not come out with a case that account books could not possibly be produced as they have been lost. His statement is that he needs three months time to trace out the account books. To a question put by the Assessing Authority, the witness Naresh kumar stated that since the account books relate ,to a period of 15 years back and firm has been closed, the same would be produced after tracing them out. His statement is that he needs three months time to trace out the account books. To a question put by the Assessing Authority, the witness Naresh kumar stated that since the account books relate ,to a period of 15 years back and firm has been closed, the same would be produced after tracing them out. He further stated that he needs three months time to trace the account books. The assessing authority gave him 10 days time to make available the relevant account books. From the statement of Naresh Kumar it is culled out that he has not stated that the account books have been lost or they are not available. Only an evasive reply has been given that he has to trace out the account books and for this purpose he requires three months time. All the! three authorities below after appreciating the evidence the statement of Naresh Kumar recorded a finding that he is not truly stating the fact and his statement cannot be relied upon. The Tribunal has come to the conclusion that inference drawn by the authorities below that no reliance can be placed upon the statement of Shri Naresh Kumar cannot be said to be unjustified. The statement of Naresh Kumar is biased and tilted towards the dealer applicant to benefit it. The inference drawn by the Tribunal is basically finding of fact, Nothing could be placed before me to show that the said finding of the Tribunal is perverse or against the material on record, except the fact that admittedly Naresh Kumar had not brought Exhibit 15, which he was otherwise required to bring. ( 9 ) AT this juncture, the learned counsel for the applicant submitted that in view of the admitted position that Naresh Kumar did not bring the relevant record, no additions can be made by the department in the disclosed turnover in view of the order of the Tribunal dated 30. 1. 1985. The order of Tribunal has attained finality. In the absence of production of record by the witness, entries in the account books of M/s. Ram Rikhdas Roop Chandra cannot be relied upon to discredit: the account version of of the applicant. In reply the learned standing counsel submitted that a fresh opportunity by again remanding the matter to the assessing authority, be afforded by this Court. In the absence of production of record by the witness, entries in the account books of M/s. Ram Rikhdas Roop Chandra cannot be relied upon to discredit: the account version of of the applicant. In reply the learned standing counsel submitted that a fresh opportunity by again remanding the matter to the assessing authority, be afforded by this Court. ( 10 ) THE learned counsel for the applicant placed reliance upon certain decisions of this Court and submitted that in view of peculiar facts and circumstances of his case no adverse inference should be drawn and no useful purpose is going to be served by again restoring the matter back to the Assessing Authority and compelling the Lucknow party namely M/s. Ram Rikhdas Roop chandra to produce its account books relating to the assessment year 1971-72. Reliance has been placed by him on the following cases:1. 1979 UPTC 999 Ram Dayal Harbilas v. CST. 2. 1981 UPTC 656 CST v. Faquir Chand Hazari Lal 3. 2o04 STR (40) 690 Gupta Enterprises v. CST. 4. 2o04 UPTC 560 CST v. Om Prakash 5. 2000 UPTC 732 Vishambhar Nath Ravindra Kumar v. CST. ( 11 ) FURTHER it was submitted that the order of remand passed by the Tribunal is unambiguous and unequivocal land has attained finality between the parties. It is not open to the department: to challenge the legality and propriety of the remand order in a revision filed by the dealer. Reliance has been placed by him on the following cases in support of the above submission:1. Satydhyan Ghoshal v. Smt. Deorajin Debi, AIR 1960 S. C. 941 (paras 7 and 8)2. AIR2005 SC 446 , 2005 (1)AWC220 (SC), JT2004 (10)SC 173 , 2004 (10)SCALE28b , (2005)1 SCC444 U. P. State Road Transport Corporation v. State of u. P. 3. 1997 UPTC 161 (5,6 and 7) Camilla Industries v. State of U. P. 4. (2001) 4 SCC 9 Dhanajaya Reddy v. State of Karnatak. 5. AIR2004 SC 1576 , [2004 ]118 Compcas507 (SC), (2004)2 glr1205 , JT2004 (1)SC 628 , 2004 (2)SCALE155 , (2004)2 SCC463 , 2004 (2)UJ1079 (SC), (2004)2 UPLBEC1561 Mehsana Distt. Central Cooperative v. State of Gujrat. 6. [2004 ]122 Compcas161 (SC), (2004)4 Complj1 (SC), 2004 (4)CTC619 , JT2004 (7)SC 434 , 2004 (3)KLT475 (SC), (2005)2 MLJ10 (SC), 2004 (7)SCALE589 , (2005)1 SCC212 , [2004 ]54 SCL601 (SC) Dale and Carrington In. Central Cooperative v. State of Gujrat. 6. [2004 ]122 Compcas161 (SC), (2004)4 Complj1 (SC), 2004 (4)CTC619 , JT2004 (7)SC 434 , 2004 (3)KLT475 (SC), (2005)2 MLJ10 (SC), 2004 (7)SCALE589 , (2005)1 SCC212 , [2004 ]54 SCL601 (SC) Dale and Carrington In. Kt (P) Ltd. v. P. K. Prathapan. ( 12 ) THE case of Ram Dayal Harbilas v. C. S. T. (Supra) is an authority for the proposition that if an assessment order has been set aside in appeal by the First Appellate Authority, it is open to the Assessing Authority while dealing with the case after , remand to take it into consideration a new material and it can enhance the taxable turnover. This case law has no relevancy to the controversy in hand in as much as in the case in hand the order of remand was passed by the tribunal, that is, second appellate authority. ( 13 ) THE Commissioner of Sales Tax v. Fakirchand Hajari Lal 1981 UPTC 656 is an authority for the proposition that assessment is responsibility of the department. While , determining the turnover, the department, can arrive on evidence which is admissible and pass an order after affording an opportunity to a dealer. It is clarified with the world "admissibility" may not be understood in the strict sense of the Evidence Act but it cannot admit on any doubt that no material can be relied with which the assessee is not confronted. Confronting does not means telling the assessee with the documents on record. For instance if reliance is placed on account books or diary or material belonging to the third person then the department is required to establish its authenticity, which may be established either by admission of assessee or department may prove it. Proof does not mean bringing it on record. It is to be done by the department on its own. Nor it is for the assessed to insist that it should be proved if the department fails to prove it, it cannot rely on it nor it can claim that it woke up and became conscious of its responsibility only when it was shaken by the assessee. This case has been followed subsequently in number of cases such as CST v. Om Prakash Agrawal 2004 UPTC 560, Gupta Enterprises v. CST 2004 STR 690. This case has been followed subsequently in number of cases such as CST v. Om Prakash Agrawal 2004 UPTC 560, Gupta Enterprises v. CST 2004 STR 690. ( 14 ) IN Vishwambhar Nath Ravindra Kumar v. SCT this was held by this Court that the Sales tax Authorities have got power to summon a witness in a like manner as Civil Court possesses under Rule 75 of U. P. Scales Tax Rules. ( 15 ) THE other cases relied upon by the learned counsel for the applicant are to the effect that if a remand order has not been challenged the same attains finality and it would no longer be open to other side to challenge the remand order at the subsequent stages of the proceedings. It is not necessary to deal with these cases separately. ( 16 ) IN view of the above discussion particularly the law as laid down by this Court in the case of fakirchand Hajarilal (Supra) 1981 UPTC 656 it is clear that although steps were taken by the department for production of Naresh Kumar along with record, Naresh Kumar failed to produce the record and as such the department has failed to discharge the burden to comply with the order issued by the Tribunal in its earlier order dated 30thjanuary, 1950. The sole basis for the rejection of. the account books in the present case is the entry found in the account books of the third party namely Ram Rikhdas Roop Chandra (Supra ). It was duty of the department to prove the said entry found in the account books. In absence of production of account books of ram Rikhdas Roop Chandra, it cannot be said that the department has complied with the direction given by the Tribunal in its letter and spirit. The law also requires that before entry in the account books of a third party is taken as basis for rejection of the account books of the dealer, proper opportunity by way of confrontation of the account books of third party and its cross examination should be afforded as also laid down by the Supreme Court in the case of state of Kerala v. K. T. Shaduli and N. Yushuf 1977 UPTC 363. In such circumstances in normal course the matter ought to have been remanded to the assessing authority to reframe the assessment order afresh after calling the Lucknow party to produce its record. But looking to the distance of time I am of the considered opinion that no useful purpose is going to be served by passing a fresh remand order again. A period of about 35 years has passed away and there appears with all likelihood that M/s. Ram Rikhdas Roopchandra would not produce the account books specially when they could not produce it in the year 1986. In the peculiar facts and circumstances of the case, the interest of justice would be served by passing the order in this revision in the light of the order dated 30. 1. 1985 passed by the Tribunal earlier by holding that the account books of the applicant are not liable to be rejected on the basis of entries contained in Exhibit-15. ( 17 ) IN the result the revision is allowed. The order of the Tribunal is set aside. No order is passed as to costs. . .