2012 (5) TMI 525

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....ty of an equal amount under Section 11AC of the Central Excise Act, 1944. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of non-alcoholic aerated water. During the course of verification of ER-1 and ER-6 returns for the period from January, 2008 to December, 2008, it was found that the production of aerated water during the said period was 549093000 mls. on consumption of 6334 units of concentrates, whereas during the year 1999-2000, the production was 7,28,42,60,800 mls. on consumption of 3213 units of concentrates. The proceedings were initiated against the appellants on the ground that they have suppressed production and clandestinely removed the goods in contravention of the provis....

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....ed by the Hon'ble High Court of Bombay in the case of Commissioner v. Pepsico India Holding Ltd. - 2008 (232) E.L.T. A197 (Bom.). The ld. Advocate for the appellants also relied upon the decision of the Tribunal in the case of Suzlon Fibres Ltd. v. Commissioner of Central Excise - 2008 (230) E.L.T. 166 (T). The contention is that the entire demand for the period January, 2008 to December, 2008 has been raised relying upon input output ratio of the year 1999-2000. The ld. Commissioner has not taken into consideration the fact that not only the beverages, different types of beverages are manufactured by the appellant where the input output ratio is different. Therefore, average input output ratio for the period, 1999-2000 cannot be applied fo....

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....ndents themselves had fixed norms of production for their units. The Tribunal also considered in its common order in the case of Pepsico India Holdings Ltd. v. Commissioner of Central Excise, Mumbai-II, 2000 (177) E.L.T. 659. The question that we are called upon to answer is whether question (A) as formulated considering the judgment in Oudh Sugar Mills Ltd. (supra) arises from the order. In the instant case, though statements were recorded they were in respect of the norms which the respondents had set for itself. The Tribunal recorded a finding that the appellants herein had based the purported evasion of duty on shortfall in production and this was not permissible. We cannot find fault with the findings recorded by the Tribunal on that c....