TaxTMI 
TaxTMI 
2015 (4) TMI 773
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter 72 of the Central Excise Tariff. In course of inquiry conducted in respect of the respondent company, it was found that during 2006-2007 in their profit and loss account they have shown an income of Rs. 35,05,614/- from commodity trading in Multi Commodity Exchange of India, Mumbai (MCX) through a Member of the exchange M/s Ramdoot Management Pvt. Ltd., Kolkata. On inquiry with MCX, the Department was informed by Assistant Vice President (Legal) MCX, Mumbai vide letter dated 29/9/09 that as per their unique client code data base of the exchange, the respondent company M/s Shiv Real Ispat Pvt. Ltd., Raipur is not a client registered with their Members M/s Ramdoot Management Pvt. Ltd., Kolkata and that the trades mentioned in the co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere of the view that such low capacity utilisation indicated that the entire production was not being reflected in the books of accounts. Beside this, the value edition during the year 2007-2008 and 2008-2009 was found to be 55.31% and 7.12%. 1.3 It is on this basis that the show causer notice dated 09/02/2011 was issued to the respondent for recovery of Central Excise duty of Rs. 6,83,336/- from the respondent alongwith interest thereon under Section 11AB and also for imposition of penalty on them under Section 11AC. The show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 30th January 2012 by which he confirmed the duty demand alongwith interest under Section 11AB and imposed penalty....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the respondent for the goods cleared clandestinely or on account of under valuation of the goods cleared under the invoices, that the allegation of clandestine clearance is also corroborated by vide fluctuation in the consumption of electricity per M.T. of the rolled products produced which varied from 150 units per M.T. to 786 units per M.T. and if the ratio of 150 units per M.T. of rolled products is adopted, on the basis of their electricity consumption their production during the period of dispute should be 33,007 M.T. as against the production of 13,337 shown by them, that the percentage of capacity utilisation which in the case of the respondent during 2006-2007 was 37% is also an indication that the appellant were not reflecting the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs as well as Investigating officers was not allowed, that in this judgment Hon ble Allahabad High Court already held that merely on the basis of variation in electricity consumption, the allegation of unaccounted production and its clandestine removal cannot be made against an assessee, that this judgment of Hon ble Allahabad High Court has been upheld by the Apex court vide judgment reported in 2011 (269) E.L.T. A108 (S.C.), that merely on account of difference between the value of sales as reflected in ER-1 return and as reflected in the balance sheet, the allegation of under valuation cannot be made and that in view of this, there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and per....