2016 (11) TMI 1347 - HC - Central Excise

Presumptive SCN - Clandestine removal - Principle of natural justice - Held that - In view of the aforesaid electricity consumption report, per tonnage, it appears that the variation is from 555 units to 1800 kWH/Per Ton. This is mainly because of the nature of the machinery utilized by the noticee - the electricity consumption pattern as has been given in Annexure- RUD-7, as stated in paragraph 4 of the show cause notice, which is at page no. 63 of this memo of writ petition which reveals that this petitioner has consumed electricity absolutely in consonance with the report given by Joint Plant Committee, constituted by the Ministry of Steel, Government of India and for few months it is even less than that - one could not have been chosen by the respondents, arbitrarily, without carrying out the experiment of consumption of electricity for one ton of manufacturing at the noticee s manufacturing unit - Thus, without experiment is being carried out at the premises of the noticees, use of any of the committee s report for electricity consumption pattern always leads to arbitrariness on the part of the respondent-department - Petition is allowed by way of remand.

Summary

Issues Involved:
1. Validity of the show-cause notice dated 01.08.2014.
2. Adequacy of opportunity and violation of natural justice principles.
3. Reliance on Dr. N.K. Batra's report and electricity consumption pattern.
4. Allegations of clandestine removal of M.S. Ingots.
5. Adequacy and relevance of evidence provided by the respondents.
6. Procedural lapses in the issuance of the show-cause notice and adjudication process.

Issue-wise Detailed Analysis:

1. Validity of the Show-Cause Notice:
The writ petition challenges the show-cause notice dated 01.08.2014 issued by the Commissioner, Central Excise and Service Tax, Ranchi, on grounds of being based on "presumption and surmises" regarding the clandestine removal of M.S. Ingots. The notice covers the period from June 2009 to March 2014 and is primarily based on the alleged unrealistic electricity consumption, high production costs vis-a-vis sales income, and low employee salary expenditure.

2. Adequacy of Opportunity and Violation of Natural Justice Principles:
The petitioners argued that there was a gross violation of the principle of natural justice as crucial documents referred to in the show-cause notice, such as the Nucleus Group report and All India Induction Furnace Association report, were not supplied despite repeated requests. The court noted that the preliminary defense was submitted in the absence of these documents, and the Order-in-Original incorrectly stated that no reply was given by the noticee, indicating a lack of adequate opportunity to be heard.

3. Reliance on Dr. N.K. Batra's Report and Electricity Consumption Pattern:
The court observed that the show-cause notice heavily relied on Dr. N.K. Batra's report, which has been repeatedly criticized in various judgments. The court emphasized that electricity consumption patterns can only serve as corroborative evidence and not as substantive proof of clandestine removal. The court directed that henceforth, the respondents should not use Dr. N.K. Batra's report unless an experiment is carried out at the factory premises of the noticee to determine the actual electricity consumption for manufacturing.

4. Allegations of Clandestine Removal of M.S. Ingots:
The court highlighted that the allegations of clandestine removal were based on presumptions and lacked concrete evidence. The court listed several types of substantive evidence that should have been collected by the department, such as details of raw material purchases, manufacturing records, packing material usage, employee statements, stock discrepancies, and transportation records.

5. Adequacy and Relevance of Evidence Provided by the Respondents:
The court found that the respondents failed to provide substantive evidence to prove the allegations of clandestine removal. The reliance on electricity consumption patterns alone was deemed insufficient. The court also noted that the respondents did not follow their own circular dated 26.06.2014, which mandates following accepted decisions in similar cases.

6. Procedural Lapses in the Issuance of the Show-Cause Notice and Adjudication Process:
The court criticized the respondents for not providing the documents referred to in the show-cause notice and for not conducting necessary experiments to substantiate the allegations. The court also noted that the respondents did not produce Dr. N.K. Batra for cross-examination, which is crucial for the authenticity of his report.

Conclusion:
The court quashed and set aside the Order-in-Original dated 22.03.2016 and remanded the matter to the Commissioner, Central Excise & Service Tax, Ranchi, for fresh adjudication. The court directed that if the respondents rely on Dr. N.K. Batra's report, an experiment must be conducted at the noticee's factory premises to determine the actual electricity consumption for manufacturing M.S. Ingots. The court emphasized the need for substantive evidence and adherence to principles of natural justice in the adjudication process.