2000 (7) TMI 410

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..... cleared without payment of duty is the view of the department that the norms of production existed, showing the quantity of beverage, which could be manufactured out of the concentrate for the beverage, which is the principal raw material. The notice to show cause alleges for example, the norms indicate that one unit of Mirinda concentrate would yield 567.8 cases of 250 ml bottles of the beverage Mirinda. The notice to show cause does not indicate the origin of these norms of production and the Commissioner's observation in this order that these were not disclosed to the department by the appellant is not supported by any evidence. 3. This is however incidental. The advocate for the appellant does not dispute that it does keep in mind nor .....

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..... are established between the raw material and the finished products and these norms are often applied in matters such as exemption from duty in the case of advanced licence. He says that the appellant had not disclosed to the department any line or other losses. He cites the rules 173D and 173E. 5. In its decision in the Parle Beverages and Ors. the Tribunal had noted that none of the persons concerned in the production of such beverage, who were questioned had accepted that it was possible to produce in reality the theoretical yield from a specified concentrate. All of them had said that while they attempted to arrive to the formula it was in actual practice not possible. The Tribunal had noted that there would be wastage of either the fi .....

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..... of such duty. 7. It is now settled that such manufacture without payment of duty has to be established by reasonable evidence. We do not find any evidence at all but theoretical calculation The provisions of rule 173E do not help the department's case either. The order of the Tribunal referred to above had declined to accept this contention for the reason that for this rule to be applied normal production has to be determined and communicated to the assessee. It is only the shortfall from the normal production that would be liable to duty. In the case before us normal production has not been fixed. It has not been shown the period for which duty was demanded was normal production throughout. The inputs other than one concentrate alone ha .....

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