2013 (12) TMI 515 - AT - Central Excise

Recall of Order Rectification of mistake - The appellant was using power in the process of frame filling for manufacture of matches from 27.02.96 Held that - Matches were under physical control till 20-07-96 - There was a qualitative difference between physical control exercised over factories producing commodities like cigarettes and rubber products and factories producing matches - Because of the large number of factories producing matches it was not possible to post an officer in each factory - the total period for which this issue lasted during physical control was only about five months 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.

Summary

Issues:
1. Rectification of mistakes in Tribunal's Final Order.
2. Allegation of using power in the process of frame filling for manufacture of matches.
3. Applicability of decision of Hon. Madras High Court.
4. Admissions by the appellant.
5. Use of power for frame filling based on factual evidence.
6. Legal argument regarding clearance of goods under physical control.

Issue 1: Rectification of mistakes in Tribunal's Final Order
The applicant filed an application seeking correction of errors in the Tribunal's Final Order, claiming that the order confirming a demand against them for using power in the process of frame filling for manufacturing matches was erroneous. The applicant argued that the order contained mistakes, including the Tribunal not addressing the applicability of a decision by the Hon'ble Madras High Court and inaccurately recording an admission by the appellant regarding the use of power.

Issue 2: Allegation of using power in the process of frame filling for manufacture of matches
The Tribunal concluded that the appellant was using power in the frame filling process based on various factual findings, including the appellant obtaining electrical connections and motors necessary for running the frame filling machine, power consumption patterns, and admissions made by the appellant during a visit by officers to the factory. The Tribunal found no infirmity in its conclusion that power was indeed used for frame filling from a specific date.

Issue 3: Applicability of decision of Hon. Madras High Court
The Ld. AR argued that the decision of the Hon. Madras High Court was examined, and the Tribunal provided detailed findings supporting its conclusion that power was used in frame filling from the specified date. The Ld. AR contended that the applicant's argument was based on erroneous facts, which fell outside the scope of rectification of mistakes, citing Supreme Court decisions on limitations in applications for rectification of mistakes.

Issue 4: Admissions by the appellant
The appellant's submissions and statements made during the visit by officers to the factory indicated the use of power for frame filling, contradicting the appellant's later claims. The Tribunal considered these admissions and statements as evidence supporting the conclusion that power was used in the manufacturing process.

Issue 5: Use of power for frame filling based on factual evidence
The Tribunal analyzed various factual aspects, including the mahazar dated 12-06-98, which detailed the purchase of machinery, power consumption, and the manufacturing process. The Tribunal found that the appellant failed to provide evidence to refute the use of power in frame filling, leading to the confirmation of the demand for duty and interest for the relevant period.

Issue 6: Legal argument regarding clearance of goods under physical control
The Tribunal addressed the legal argument regarding the clearance of goods under physical control and the implications for the demand raised. It differentiated the control exercised over factories producing matches from other commodities and determined the sustainability of the demand based on the period of physical control and the disclosure of power usage. The Tribunal partially allowed the ROM application, dropping the demand and penalty for the period before a specified date but confirming it for the subsequent period along with appropriate penalties under the Central Excise Act, 1944.