TaxTMI 
TaxTMI 
2010 (9) TMI 563
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of Rs. 10 lakhs imposed on him under Rule 26 of the Central Excise Rules, 2002. These applications seek waiver of pre-deposit and stay of recovery in respect of these amounts. 2. The above demand of duty is primarily based on the finding of clandestine manufacture and clearance of M.S. ingots by the assessee. This finding, in turn, is based on consumption of electricity in excess of certain limit reported by Dr. N.K. Batra, Professor of IIT, Kanpur based on a technical study of the process of manufacture of M.S. ingots from raw materials such as scrap, sponge iron etc. The Professor reported a range of energy units (555 - 1046) required for the production of one MT of M.S. ingots depending on various factors affecting the efficien....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd of duty will not be sustainable on mere probabilities as in this case. The Ld. counsel further submits that the IIT Professor's technical opinion was not accepted by this Tribunal in the similar case of R.A. Castings Pvt. Ltd. v. Commissioner of C. Ex. Meerut [2009 (237) E.L.T. 674 (Tri.-Del.) and therefore, the demand of duty in the instant case, which is also based on the same report, is liable to be set aside. It is also pointed out that the higher limit of energy consumption suggested by the IIT Professor was 1046 units and not 1026 units. If the amount of duty is quantified on the basis of 1046 units, it would be much below what was quantified by the Commissioner. The ld. counsel has also referred to an addendum to the show-cause no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Tribunal whereby another assessee, in an apparently similar set of facts, was directed to make a pre-deposit viz. Everest Rolling Mills (P)Ltd. v. CCE, Jaipur [2009 (244) E.L.T. 91 (Tri.-Del)]. The ld. counsel, however, emphatically submits that the facts of the instant case is materially different from those of Everest Rolling Mills (P) Ltd. In this connection it is submitted that, in the case of Everest Rolling Mills (P) Ltd. the department had the advantage of evidence gathered from raw material suppliers who, in their statements, admitted that they had supplied to the assessee (Everest Rolling Mills (P) Ltd.) raw materials in excess of accounted quantities. No such evidence is forthcoming in the present case and therefore, the prim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llegation made in the original show-cause notice. According to the ld. Commissioner, the addendum only enhanced the "preponderance of probabilities". Apparently, the ld. Commissioner was following a ruling of the apex court on "preponderance of probabilities" rendered in the case of Collector of Customs, Madras v. D. Bhoormal [1983 (13) E.L.T. 1546 (S.C.)]. The ld. JCDR also relied on this judgment of the Apex Court before us. However, it has not been shown to us that the apex court's ruling on "preponderance of probabilities" was rendered in the context of sustaining any demand of duty. We further note that this judgment of the Hon'ble Supreme Court was noted by the Tribunal in the case of R.A. Castings Pvt. Ltd. (supra) wherein the demand....