2024 (3) TMI 447 - AT - Central Excise

Clandestine removal - failure to declare the manufactured quantity - reliance placed on consumption norms worked out by Dr. Batra of IIT, Kanpur - main ground taken by the Revenue was that the electricity consumption as worked out by Dr.Batra, of IIT, Kanpur does not match with the output shown by the Appellant - Extended period of limitation - HELD THAT - From the Order-in-Original para 9.2 it is seen that the Adjudicating authority has relied on the report of Dr.Batra of IIT, Kanpur to come to a conclusion that excess quantity has been manufactured and cleared without payment of excise duty. There is nothing to indicate in the Show Cause Notice and the Order-in-Original that the Department has brought in any corollary evidence to the effect that the Appellants have procured raw materials on cash basis or cleared the goods on cash basis and no private records have been seized nor any investigation has been taken up on this ground. In the case of COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. 2010 (9) TMI 669 - ALLAHABAD HIGH COURT , the Hon ble Allahabad High Court has held we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1) of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any mis-statement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal. The facts in the present case are similar and hence, the ratio of the decision is squarely applicable. Therefore, following these decisions, the confirmed demand is not sustainable on merits. Accordingly, the Appeal allowed on merits. Extended period of limitation - HELD THAT - There are force in the Appellant s argument that the Department has not come out with any evidence towards suppression so as to invoke the extended period provisions. Therefore, the confirmed demand for the extended period is liable to be set aside on account of limitation. Accordingly, the confirmed demand for the extended period is set aside on account of limitation also. The Appeal is allowed both on merits as well as on limitation.

Summary

Issues Involved:
1. Whether the demand based on electricity consumption records is sustainable on merits.
2. Whether the extended period for issuing the Show Cause Notice is justified.

Summary:

Issue 1: Demand Based on Electricity Consumption Records

The Appellant, a manufacturer of MS ingots, was issued a Show Cause Notice for allegedly clearing goods clandestinely without paying Excise Duty, based on electricity consumption records analyzed by Dr. Batra of IIT Kanpur. The Department's case relied solely on the discrepancy between electricity consumption and recorded production. The Appellant contended that such a basis is speculative and cited precedents where tribunals and courts held that electricity consumption alone cannot determine excise duty liability. The Tribunal noted that the Department failed to provide corroborative evidence such as records of raw material purchase, movement of goods, or statements from suppliers and buyers. Citing cases like SRJ Peety Steel Pvt. Ltd. vs. Commissioner of C.Ex., Aurangabad and R.A. Castings Pvt. Ltd., the Tribunal reiterated that electricity consumption cannot be the sole factor for determining duty liability without supporting evidence. The Tribunal found the Department's reliance on Dr. Batra's report insufficient and ruled that the confirmed demand is unsustainable on merits.

Issue 2: Extended Period for Issuing Show Cause Notice

The Show Cause Notice was issued for the period from September 2008 to July 2013 by invoking the extended period provisions. The Appellant argued that there was no evidence of suppression or fraud to justify the extended period. The Tribunal agreed, noting that the Appellant was a registered assessee subject to regular audits, and the Department did not present any evidence of suppression or misstatement. Citing the precedent in R.A. Castings Pvt. Ltd., the Tribunal held that the extended period could not be invoked without clear evidence of suppression or fraud. Consequently, the confirmed demand for the extended period was set aside on the grounds of limitation.

Conclusion:

The Tribunal allowed the Appeal both on merits and limitation, setting aside the confirmed demand and granting the Appellant consequential benefits as per law.