TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 403
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....uty liability on unrecorded production alleged to have been clandestinely cleared between March 2005 and December 2005, liability of Rs.78,99,000 owing to the actual clearance between 2005-06 and 2008-09 disentitling them to concessional rate afforded to 'small scale industry (SSI)' units by notification No. 8/2003-CE dated 1st March 2003 and demand of Rs.23,645 on shortages ascertained by physical inspection, along with interest thereon under section 11AB of Central Excise Act, 1944, besides imposition of penalty of like amount under section 11AC of Central Excise Act, 1944. Having determined capability, from supervised operation of facility on 14th December 2008 yielding 1570 metric tons of '6 mm round bars' by consuming 128 kwh of ....
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....ve provide good and sufficient corroboration of the allegation. After all, clandestine manufacture/removal of goods is an activity which is done surreptitiously; secrecy and stealth are its covering guards. In such cases, direct evidence proving everything beyond doubt will be rarely forthcoming. It is not feasible to unfold the every chain of the link, when the activity is kept concealed / secret. In such case, "pre-ponderance of probability" mechanism would come into play. is, according to Learned Counsel, leap of presumption warranted only for filling gaps in evidence and not substitute for evidence itself. According to him, the test production undertaken under supervision of officers does not reflect the reality of manufacturing and e....
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....n of 128 KWH of electricity within a span of four hours, resulted into the facts of production of 12.27 Kgs.of M. S. Bars on consumption of 1 KWH of electrical power. On this basis, the quantum of actual production was determined over a given period. It is true that there are so many variables, including the factors such as manual feeding of heated material taken out of furnace for rolling, hardness of the re-rollable scrap, frequent break-downs which creates mis-rolls generation etc., which influences the actual production, but all these parameters were taken into account, while ascertaining the actual production. Thus, there may be some valid points in some of the above defences made by JBSRM, but those are at best covered within the deri....
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....could be no better sustenance for the alleged evasion than from the statement recorded by officers on the day of visit. 7. The issue of clandestine clearances allegedly prevalent in the steel sector had been in controversy for long and, as pointed by the Learned Counsel, the Tribunal, in several decisions, has held that the deriving of presumed production with reference to electricity consumption is not sufficient for recovery by recourse to section 11A of Central Excise Act, 1944. From the decision of the Tribunal in RA Casting Pvt Ltd v. Commissioner of Central Excise, Meerut - I [2009 (237) ELT 674 (Tri-Del)] holding that '23. The Tribunal has consistently taken the view that wherever electricity consumption alone is adopted as the ba....
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.... of India (1995) ITR 31 has held that "the income-tax officer does not have any authority or jurisdiction to levy tax on the petitioner-company. Further, the ITO was not having jurisdiction to decide whether or not the petitioner which is incorporated in United Kingdom is a genuine company. It seems that he has forgotten the fact that he is not having the jurisdiction to assess the petitioner-company in view of the covenant under Section 90 of the Income-tax Act between the Government of India and Government of United Kingdom. In any set of circumstances, the fact whether or not the petitioner-company which is incorporated in the United Kingdom which is a genuine company is not required to be investigated by the income-tax officer under the....