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TMI Blog2005 (5) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... g these inputs at high temperature. 3.Cement is liable to Central Excise duty and the stage for payment is the time of removal from the factory. Appellant was following this stipulation. Even so, show cause notices were issued to the appellant alleging that it had removed certain quantities of cement produced by it without paying Central Excise duty. The basis for the allegation was that the quantity of cement accounted in revenue documents from time to time was less than the total quantity of raw material consumed. Notice dated 26-4-2000 states as under :- On examination of Central Excise records from April, 2000 to Sept., 2000 it was noticed that they are showing manufacturing losses 2.576% by way of dust fly in the air. It comes on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time and again, it has been held by the Tribunal that charge of clandestine removal should be proved on the basis of clinching evidence and absolute proof or the charge of clandestine, removal has to be proved on the basis of corroborating evidences. In the instant appeals, there is absolutely no evidence oral or documentary to substantiate the charge of the Revenue. In the case of Commissioner v. Ravi Shankar Industries Ltd. - 2002 (105) E.L.T. 1317 (Tribunal - Chennai), it has been held that the documentary evidence is required to prove the charge, and in the case of Krishna v. Collectors of Central Excise, Jaipur - 1998 (98) E.L.T. 74 it has been held that the department ought to produce corroborative evidences in case of clandestine re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are directed against this order. 7.I have perused the records and heard both sides. 8.The contention of the appellant is that manufacturing loss is a well understood factor in production and in the present case since the demand is based entirely on the quantity of raw materials consumed, the same is not sustainable, being contrary to a well accepted principle. The aspect of loss of raw materials during production has also been judicially noticed by the Apex Court in its judgment in the case of Union of India v. Indian Aluminium Co. Ltd. - 1995 (77) E.L.T. 268 (S.C.). Reliance has specifically been placed by the appellant on the observation in para 14 of the judgment. I read that para :- The entire quantity of raw materials, 14. na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finding regarding quantity of loss to be allowed, the appellant has submitted that the order of this Tribunal in the case of Amba Cement and Chemicals contained no finding that a particular quantity or percentage is normal or that duty demands after allowing such quantity of raw material loss is sustainable. 11.Learned SDR has submitted that high production loss as observed in the present case cannot be accepted and that the loss within the norm should alone be allowed. He has also relied on the decision in the case of Amba Cement and Chemicals. 12.Mercifully, facts are not in controversy. The Commissioner himself has noted that there is no evidence indicating clandestine removal of unaccounted production. All the same it has been h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner, I may read Para 17 of that order :- Allegation No. 5 is that the appellants 17. suppressed the production of cement. The contention of the Revenues is that balance sheet for the year 1988-89 showed that 3291 MTS of lime stone was used for production 2226.70 MTS of cement whereas as per the formula given by Sh. Manoj Thakur, the production showed 2843 MTS of cement. The contention of the appellants is that the formula is merely theoretical any duly dependent on purity of raw material. We further find that as per formula given by Manoj Thakur, for production of 1000 kg. of clinker, 1238.4 kg. of lime stone, 361.2 kg. of coal, 17.2 kg. of gypsum and 103.2 kg. of clay is required. Thereafter, this 1000 kg. of clinker is mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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