2018 (3) TMI 760

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....round that since the appellants have consumed more electricity power as compared to the power required for manufacture of finished goods. The difference of power presumed to have used for manufacture of finished goods and the said finished goods have been cleared without payment of duty. The entire case was based on the statement of employees/directors. Adjudicating authority dropped the proceedings of the show-cause notice on the ground that merely on the statements of partners/directors regarding average consumption of electrical power per MT of finished goods is not dependable evidence which will adequately prove the charges of clandestine production and removal. Being aggrieved by the order-in-original, Revenue filed the present appeal.....

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....ied Products - 2016 (344) ELT 292 (Tri.) (e) SRJ Peety Steel Pvt. Ltd., v. CCE - 2009 (246) ELT 332 (Tri.) as approved by the Hon'ble High Court as reported in 2012 (275) ELT A57 (P & H) (f) Shivam Steel Corporation v. CCE - 2016 (339) ELT 310 (Tri.). 5. We have carefully considered the submissions made by both sides. 6. We find that the Commissioner has dropped the proceedings of show-cause notices. The finding in one of the impugned order relating to the present cases is reproduced below:-  "This order is issued in pursuance of order File No. IV/16-4-CCO/ AE/PZZ/08 dated 14th July2008 issued by the Chief Commissioner, Gentra1 Excise, Pune, wherein the undersigned has been designated as the co....

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.... actual consumption is very high compared to the admission in statement, the quantum of production based on the admitted average electricity has been calculated. The difference between the expected production arrived at and the actual production shown by the unit as per their record has been alleged as clandestine clearance and duty demanded there on.  The noticees have vehemently argued that the show-cause notice is based on only assumptions and presumptions and no evidence has been provided to reach the conclusion of clandestine removal. It settled law that the charge of clandestine removal has to be proved to the hilt by the department with sufficient and specific evidence. I agree with the submission of the notice....

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.... in some of the months the production is coming short as per the calculation of the production on the basis of 600 unit PMT and in most of the months the production is coming on higher side. Therefore, this itself shows that 600 unit PMT taken by the adjudicating authority is arbitrary and theoretical and the same cannot be applied. In various judgments, this Tribunal and various Hon'ble High Courts have clearly held that the demand of duty cannot be confirmed only on the basis of variation in the electricity consumption shown actually and electricity consumption opined by some technical expert. In this regard, the relevant judgments are as under: -    (i) R.A. Castings Pvt. Ltd. 2009 (237) ELT 674 (Tri) (ii)....