2018 (2) TMI 1561 - AT - Central Excise

Clandestine manufacture and removal - plastic disposable glasses - it was revealed that the electricity consumption in the appellant s factory was dis-proportionate to the production of the goods recorded in books - Held that - the department has filed the appeal only on the ground of excess electricity consumption - this issue is no more res-integra. By now it is the settled law that excise duty cannot be demanded on the basis of excess electricity consumption. The decision of Hon ble Allahabad High Court in the case of R.A. Castings 2010 (9) TMI 669 - ALLAHABAD HIGH COURT relied upon where in Hon ble High Court has held- Mere electricity consumption cannot be the only basis for determining duty liability. Appeal dismissed - decided against Revenue.

Summary

Issues:
- Allegation of suppression of production and clearance of goods to evade duty
- Validity of demand for Central Excise duty based on excess electricity consumption
- Appeal against reduction in demand and imposition of penalty
- Interpretation of relevant legal provisions and settled law on determining duty liability

Issue 1: Allegation of Suppression of Production and Clearance of Goods to Evade Duty
The case involved a partnership firm engaged in manufacturing Poly Propylene Glasses availing a value-based exemption for Small Scale Industries. Central Excise officers suspected suppression of production and clearance based on disproportionate electricity consumption. A show cause notice was issued alleging non-registration under Central Excise Rules and duty evasion. The Original authority imposed a demand for duty and penalty, which was partially reduced in the Order-in-Original. The Commissioner (Appeals) observed no evidence of clandestine activities and set aside the demand and penalty, citing lack of proof of goods being removed without payment of duty. The Commissioner relied on various rulings, including the Hon'ble Allahabad High Court's decision in a similar case.

Issue 2: Validity of Demand for Central Excise Duty Based on Excess Electricity Consumption
The main contention was whether excess electricity consumption alone could justify demanding Central Excise duty. The Revenue appealed based on the grounds of excess electricity consumption, but the Tribunal noted that it is settled law that duty cannot be demanded solely on this basis. The Tribunal referred to the Hon'ble Allahabad High Court's decision in R.A. Castings Pvt. Ltd., affirming that mere electricity consumption cannot be the sole basis for determining duty liability. Consequently, the Tribunal upheld the Order-in-Appeal passed by the Commissioner (Appeals) dismissing the Revenue's appeal.

Issue 3: Appeal Against Reduction in Demand and Imposition of Penalty
The Respondent-assessee and the Revenue both appealed against the reduction in demand and imposition of penalty. The Commissioner (Appeals) found no evidence of clandestine activities and set aside the entire demand and penalty. The Revenue's appeal was based on the grounds of excess electricity consumption, but the Tribunal reiterated that such a basis alone cannot justify demanding duty. Consequently, the Tribunal dismissed the Revenue's appeal, upholding the decision of the Commissioner (Appeals).

Issue 4: Interpretation of Relevant Legal Provisions and Settled Law on Determining Duty Liability
The Tribunal's decision was guided by the interpretation of legal provisions and settled law regarding duty liability determination. It emphasized that excess electricity consumption alone cannot lead to the imposition of Central Excise duty. Referring to the Hon'ble Allahabad High Court's ruling in R.A. Castings Pvt. Ltd., the Tribunal affirmed that mere electricity consumption cannot be the sole basis for determining duty liability. This interpretation formed the basis for dismissing the Revenue's appeal and upholding the Order-in-Appeal passed by the Commissioner (Appeals).