9911796707
TMI Blog1990 (6) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty in the Show cause notice made was from September 1982 to May 83 and April 1985 to August 1985. The matter was adjudicated and culminated in the adjudication Order No. 19/85 dated 5-12-1985 and demand for the duty was dropped and the appellants were imposed a penalty of Rs. 1,000/- for violation of Rule 53, under Rule 210 of the Central Excise Rules, 1944. This order of the adjudicating authority was taken up in appeal before the Collector of Central Excise (Appeals), by the Department and the learned Collector (Appeals) in his order dated 4-11-1986 allowed the Departmental appeal by holding that "In view of the above, it is quite clear that the Deputy Collector has erred in holding that there is no evidence that the matches marketed in the name of Muthiah Match Works were being manufactured by Tamilselvi Match Industries. In view of the findings by witnesses in the mahazar and the statement of the licensee of Tamilselvi Match Works, who is also the authorised representative of Muthiah Match Works, i.e. power agent and Muthiah Match Works' licence being issued in the name of his wife although another, it is crystal clear that the matches for both the units were manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Deputy Collector is allowed and the order of the Deputy Collector is set aside, with a direction to calculate differential amounts of duty recoverable from Doraisamy, the licensee of Tamil Selvi Match Industries and power agent of the other factory of his wife Smt. Rajeswari, for the year 1985-86". This order clearly indicates that the recoverable amounts of duty are to be calculated and recovered by the Deputy Collector not in disregard to the provisions of Section 11A of the Central Excises & Salt Act, but within the framework of Section 11A of the said Act. Therefore, the respondent's contention before CEGAT that this order has authorised the Deputy Collector to recover duties for a period for which no show cause notice was issued under Section 11A of Central Excises & Salt Act, is not correct. In fact duties recoverable for the year 85-86 further subjected to the show cause notice issued under Section 11A are only recoverable. If for any period left out in the show cause notice, duties are sought to be recovered, the same can be done only under provisions of Section 11A and for that purpose, the jurisdictional authorities will have to issue show cause notice, if not alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge the duty demanded upto 20-08-1985. He has pleaded that in the fresh Show cause notice issued by the Dept. dated 22-09-1988 reliance has been placed on the records which were seized and the evidence which was available upto 20-08-1985 and no fresh evidence has been brought on record to warrant demand of duty beyond that period. In this connection he drew my attention to para 4,5 & 6 of the Show cause notice dated 22-09-1988 wherein the record of manufacturing operations as on date of visit of the officers on 20-08-1985 have been set out; and also mention has been made of the statement recorded from M. Duraisamy, who is the licensee. The learned Advocate has pleaded that inasmuch as no fresh evidence has been brought on record to show that the appellants had in fact carried out clandestine removal of the matches from their second Unit in their name after 20-08-1985 no further duty could be demanded. He has pleaded that the Match Units are under the physical control of the Dept. and the officers during their visit after 20-08-1985 would have detected any irregularity if it was there and no such irregularity had been pointed out and, therefore, no duty could be demanded and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar to the authorities issuing a separate show cause notice for the subsequent period. The learned lower authority, who passed the impugned order, thought it fit to issue another show cause notice but in the demand raised it did not confine the period of demand upto 20th August, 1985 period but for the entire period of 1985-86. As pointed out by the learned Advocate and admitted by the learned JDR, the evidence cited against the appellants is the same as was taken into reckoning when the original demand was raised and which, as clarified by the learned Collector (Appeals), was only for the period upto 20th August,1985. The question, therefore, that has to be examined is whether for the demand for the period beyond 20th August, 1985 is there any evidence which warranted the demand to be raised for that period. For this purpose it is necessary to compare the narration of facts and the evidence cited in the two show cause notices. It is observed that so far as the narration of facts in the first show cause notice dated 5-9-1985 and that in the show cause notice dated 22-9-88 is concerned, the facts as set out in regard to the search and the evidence discovered are the same so also the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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