TaxTMI 
TaxTMI 
2024 (3) TMI 447
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....npur. After due process, the demands have been confirmed. Being aggrieved, the appellant is before the Tribunal. 2. The Ld.Counsel appearing for the Appellant submits that it is their initial objection that the entire case has been built on assumptions and presumptions based on the electricity consumption and based on the report of Dr. Batra of IIT Kanpur about the likely output towards the electricity used by them. He submits that this issue is no more res integra and Tribunals and High Courts have been consistently holding that merely based on the electricity consumption, the manufacturing and clearance cannot be derived so as to fasten the excise duty liability on the Noticee. 3. He relies on the case law of SRJ Peety Steel Pvt.Ltd. vs. Commissioner of C.Ex., Aurangabad [2015 (327) E.L.T. 737 (Tri. - Mumbai)] and decision of Hon'ble Allahabad High Court in the case of Commissioner of Central Excise, Meerut-I vs. R.A. Castings Pvt.Ltd. [2011 (269) E.L.T. 337 (All.)]. 4. He further submits that the Department has not come out with any corroborative evidence whatsoever towards the alleged clandestine purchase of raw materials, movement of raw materials to the factory, move....
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....as been taken up on this ground. 9. In the case of R.A. Casting, cited supra, the Hon'ble Allahabad High Court has held as under:- "3. Being aggrieved by the impugned orders, the respondents filed appeals before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The Tribunal observed that it is settled principle of law that the electricity consumption can not be the only factor or basis for determining the duty liability, that too on imaginary basis, especially when Rules 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption of various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. The Tribunal further observed that no experiment have been conducted in the factories of the appellants for devising the consumption norms of electricity for producing on MT of steel ingots. Tribunal also observed that the electricity consumption varies from one heat to another and from one dat....
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...., which was already held to be arbitrary by Hon'ble Tribunal in R.A. Castings (supra). Thus, in my opinion the primary evidence relied in the impugned order is itself inadmissible, and no other evidence in the instant case proves clandestine production and clearance to sustain the demand. It is contended by Revenue that furnaces installed in the factory of present appellants were in sound condition as compared to R.A. Castings (supra), however I neither could find any material in support of this argument, nor any such finding in the Orders impugned in the appeals. The Revenue sought to rely on an order passed by Tribunal in Gulabchand Silk Mills Pvt. Ltd. v. CCE, Hyderabad-II, 2005 (184) E.L.T. 263, however the same was also considered in R.A. Castings (supra). It has been contention of the department that the Department is not required to prove its case to its mathematical precision, by relying on judgment of the Hon'ble Supreme Court in the case of D. Bhoormull - 1983 (13) E.L.T. 1546 (S.C.) relied upon by the Commissioner as well as the Hon'ble Member (Technical). It is seen that even this judgment was considered in R.A. Castings (supra). 91. There can be no dispute on ....
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....atement of melters. The Revenue has not verified the contention of the Appellants that ferro-alloy is also added at the stage of ladle and concast. As observed earlier, the Revenue has also not made any investigation in respect of another most vital raw material that is M.S. Scrap/Sponge iron. It has been held by the Tribunal in the case of Amba Cement & Chemicals, supra, when the Revenue alleged the clandestine manufacture of cement on the basis of formula for use of lime stone per ton of cement; that "No investigation is conducted in respect of other raw-materials such as coal, gypsum and clay which are also required for manufacture of cement... As no investigation is conducted in respect of other raw materials which are essential for the production of cement, therefore, the demand on the basis of that appellants suppressed the receipt of one raw material is not sustainable." Similar views have been expressed by the Tribunal in Manbhai U. Patel v. CCE, Rajkot (TMum) and T.G.L. Poshak Corporation v. CCE, Hyderabad, 2002 (140) E.L.T. 187 (T-Chennai) wherein it has been held that "unless there is clinching evidence on the nature of purchase of raw materials, use of electricity, sale....