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TMI Blog2015 (10) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... of particular date was not declared by the appellant but if date is intimated it can be taken as from 0000 hours of that particular date. Therefore in our considered view merely because hour of date of closure of production and restoration of production in the communication is not mentioned the same can not be the reason for denying the abatement. - as intimations given by the appellant from time to time to the department, correspondence of the electricity department and the facts narrated in Hon’ble Bombay High Court at Goa bench there is no dispute that production of the appellant factory remained closed during the period declared by them to the department and this fact also not disputed by the Ld. Commissioner. - appellant is legally ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 to March, 2000 in terms of above provision the Commissioner has fixed Annual capacity of the production of the assessee vide letter F. No. V/30/16(k)/97-CX.I dated 18/3/1998 and according to such fixation capacity of the induction furnace installed in the appellant s factory was fixed at 3 M.T. and accordingly appellant is required to pay Central Excise duty of ₹ 5 lakhs per month. Since the appellant did not pay full amount of Central Excise duty during the period of October, 1997 to March, 2000, five show cause notices were issued demanding total duty of ₹ 54,04,368/-. In the first round of adjudication the authority vide order-in-original No. 10/Commr. Goa/CX/2003 dated 31/3/2003 confirmed demand and imposed penalty. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory. In the Hon ble High Court order dated 12/6/1998 while discussing writ petition of the appeal disclosed that Ld Advocate acknowledged the fact that power supply cut to the appellant factory. This vital fact was available on record before Ld. Commissioner and same was recorded in the impugned order. Despite all these undisputed fact and evidences, Ld. Commissioner went on rejecting the claim of abatement to the appellant, merely on the ground that particular hours when the factory has closed and re-commenced had not been intimated to the department. It is his submissions that even though particular hours of closure and re-commence of the factory has not been intimated to the department but on basis of other corroborative evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular hours of particular day to particular hours of particular day. In this regard we have perused the relevant documents such as intimation given to the department, electricity bill, High Court order and find that the appellant vide letters intimated the department from time to time regarding closure of the production in their factory. The appellant vide letter dated 25/11/1997 intimated to the Range Superintendent that furnace will remained closed from 22/11/97 due to fault, vide letter dated 1/12/1997 similar intimation was given to the Commissioner, vide letter dated 18/12/1997 intimated, the furnace remained closed on 18/12/1997, vide letter dated 29/12/1997 intimated furnace was remained closed from 20/12/1997 and now it is ready ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below: Upon notice, we heard Mr. Nadkarni, learned Advocate General. According to him, the Government had to take this decision of power cut because of the peculiar situation. He narrated that the total energy per day available is 10,000 KVA. The Government accordingly entered into a contract to supply to the petitioner 3,500 KVA. However, owing to the opening of six new industries the Government now is not in a position to maintain supply as agreed. The impugned communication was therefore, issued. From the above undisputed fact it is observed that the appellant indeed, have been intimating to the department from time to time vide various correspondence regarding the closure and restarting of the production in their f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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