TMI Blog2013 (12) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ths for the departmental officers to conduct any verification - even if it is taken as an absolute law that in the case of clearances made after assessment under physical control demand cannot be raised invoking the extended period, this argument can relate to demand prior to 20-07-96 and the demand from 21- 07-96 to 31-03-98 is still sustainable because the use of power in frame filling is not disclosed to the department – the order modified for the period prior to 21-07-96 and to confirm demand for the period 21-07-96 to 31-03-98 along with appropriate penalty under section 11AC as may be determined by the adjudicating authority – Decided partly in favour of Assessee. - E/274/2004 - MISC ORDER No.42729/2013 - Dated:- 25-11-2013 - Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date, Revenue had made out a case that the applicant was using power from 27.02.96 itself and it is not a sustainable conclusion. He further submits that in the appeal memorandum, he had relied on the fact that the appellant filed the classification declaration under Rule 173 B claiming the concessional rate of duty to the Superintendent in charge of the Range and he had acknowledged this declaration that the applicant was not using power for frame filling and they were eligible for the exemption at the lower rate of duty. He further points out that they were eligible for exemption and the decision is not appropriate on the facts of the case. Therefore, he says that the order is passed based on the erroneous facts and the order is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement dated 12-06-98, the appellant stated that in the factory power was used for wire drawing, wire cutting and frame filling. There is an admission of mistake in the statement. For convenience the statement of Shri Shanmugakani, Proprietor of the appellant firm on 12-06-98 is reproduced below: "Today (12.6.'98) the Superintendent of Central Excise and other officers have visited my factory, M/s.Nageswari Match works (119/92), Sattur and as mentioned in the Mahazar dated 12.6.'98 in the presence of independent witnesses and before me, the factory premises and the records have been inspected and verified. In this connection, my statement on this issue is as follows : I have obtained the Central Excise license R.C. No.119/97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntarily without any coercion or compulsion. I read over the statement and I accepted as correct and the statement was written as deposed by me." 5. In view of the submissions made by the applicant in application for ROM we have further scrutinised the case records. We find that in the mahazar dated 12-06-98, it is recorded as under: Shri Shanmugakani accepted that all the papers and wax as detailed above were purchased for M/s.Nageswarai Match Works towards manufacture of wax sticks. By taking into account about the quantum of electricity consumed at the said factory and also about the huge quantity of paper and wax purchased at M/s.Nageswari Match Works, the officers having a reasonable belief that the power was used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een from para 5 of the adjudication order that though a mahazar and statement were recorded from the Proprietor on 12-06-98, the contention that the appellant was not using power in frame filling. The appellant did not produce any evidence to show that the power operated frame filling machine was procured in 1998 and not earlier. The contention that power was not used in the process of frame filling was raised only for the first time only in their reply to the SCN given on 06-05-2000. 7. Against such factual matrix we do not find any infirmity in our finding that the appellant was using power for frame filling from 27-02-96 itself. 8. Now we come to the legal argument that the clearance of the goods were under physical control and since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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