TaxTMI 
TaxTMI 
2009 (6) TMI 858
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....anufacturers of MS ingots which are excisable. The Central Excise officers visited the appellant's unit on 7-9-2001 and conducted certain checks. They visited the Registered Office of the assessee at Palakkad and recovered certain documents. A stock verification was also done with reference to books of account. Certain discrepancies were found. There was shortage and excess. The excess quantity was seized under mahazar. Statement of Shri Umesh Singh, General Manager was recorded. The analysis of the data from the records of the assessee revealed excess consumption of electricity.' There were certain changes in the capacity of the furnace also. A statement was recorded from Shri K.K. Aggarwal, Executive Officer and authorized signatory. There were certain evidences with regard to clandestine clearance to customers. A vehicle owned by the assessee was being used to remove large quantities of finished products only to particular customers. Statements of Shri Sasinathan and Shri Vasudevan, Drivers of vehicle No. KL9G 1625 were recorded. The explanation submitted by Shri Umesh Singh and Shri K.K. Agarwal with regard to excess consumption of electricity was not acceptable to the Revenue ....
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....thority for de novo consideration. Even from the perusal of the order of the CESTAT nothing is mentioned regarding receipt of materials by M/s. Lal Steels Ltd. (5) Department relied on the statement of Shri Raju Augustine, Electrical Engineer regarding consumption of power. It was urged that his evidence cannot be relied upon since his cross-examination was not made available to the appellants in spite of their request. Moreover, he joined the company as maintenance manager only in October, 2001 and the period of dispute in this case is April, 2000 to July, 2001. As he was not at all working in the factory during the said period his statement is not applicable and has no evidentiary value. (6) Revenue has relied on the statement of Shri K.K. Agrawal, Executive Officer regarding power consumption. Shri Agarwal did not accept any clandestine removal. The average yield obtained by the appellant is around 82.28% and the yield of 86-88% mentioned by Shri Agarwal is under ideal conditions. He also clarified that electric consumption during the year 2000-2001 onwards was high because of voltage problems viz. fluctuations in power suppl....
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..... The following case laws were cited. (a) Godavath Panmasala Products - 2004 (175) E.L.T. 182 (Tribunal) = 2004 (62) RLT 891. (b) CCE, Trichy v. Ravishankar Industries - 2002 (150) E.L.T. 1317. (c) Essvee polymers v. CCE - 2004 (165) E.L.T. 291. (d) New India Dyeing Mills - 2004 (165) E.L.T. 316. (e) Nav Bharath Paper Ltd. - 2004 (165) E.L.T. 564. (f) CCE v. Velavan Spinning Mills - 2004 (167) E.L.T. 91. (g) Decon India v. CCE - 2004 (169) E.L.T. 290 (Tribunal) = 2004 (62) RLT 1004. (h) CCE v. Sumangala Steel - 2004 (175) E.L.T. 634 (Tribunal) = 2004 (63) RLT 69. (i) CCE v. Velavan Spinning Mills - 2004 (167) E.L.T. 91. (j) Premium Moulding & Pressing - 2004 (177) E.L.T. 904 (Tribunal) = 2004 (65) RLT 143. (12) Reliance was also place on the decision of the Apex court in Oudh Sugar Mills v. UOI - 1978 (2) E.L.T. A172 (S.C.) wherein it has been held the allegations of cland....
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.... the appellant at 82.2%. The Department has calculated the alleged excess production purely on a theoretical basis like for every 850 units, there should be one ton of production. Based on this, the clandestine clearance has been estimated. In fact in Para 13 of the show cause notice, gives the basis for demanding the differential duty. The said para is reproduced below. 13. The electricity consumed during the period 4/2000 to 7/2001 (16 months) is 16257456 units (refere Annexure No. 7), therefore taking the correct consumption per tonne to be 850 units, the quantity of ingots manufacture would truly be 19126.18 MT. It appears that the assessee has not accounted a total production of [19126.418 - 13590.670] 5535.748 MT, valued, at around Rs. 5,53,57,480/-, @ Rs. 10,000/- per tonne, and has cleared it without payment of duty amounting to Rs. 88,57,200/-. Therefore, it appears that the assessee has committed fraud and suppression of facts by non-accounting of actual production, manipulation of accounts and clandestine clearance. Therefore, the assessee seems to have contravened the provisions of Rule 9, 52A, 53, 173-I and 173G of the erstwhile Central Excise Rules, 1944 and R....