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TMI Blog2008 (4) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... r, by which the Commissioner has dropped the case proceedings initiated vide show cause notice dated 31-3-2000. 2. Heard both sides and perused the records. 3. The Respondents are engaged in the manufacture of Winding Wires falling under Chapter Headings 74 and 85 of the Schedule to the Central Excise Tariff Act, 1985. 4. During the scrutiny of the Central Excise records in comparison with the Balance Sheet for the year 1994-95, it was revealed that the respondents had shown less production in the Excise records. The Balance sheet revealed that during the year 1994-95, the production of the winding wires was 4,66,474 Kgs whereas as per the Central Excise records, the quantity of production comes to 3,80,862 Kgs. Thus, 85,612 Kgs was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the assessee under Section 11AC of the Central Excise Act, 1944. (iv) Penalty each under Rule 9(2) and Rule 173Q of the Central Excise Rules, 1944 should not be imposed upon the assessee. (v) Interest at the appropriate rate should not be recovered from the assessee under Section 11AB of the Central Excise Act, 1944. (vi) Any land, building, plant, machinery, conveyance or any other things used in connection with manufacture, production, storage, removal or disposal of the goods copper winding wire should not be confiscated under Rule 173Q(2) of the Central Excise Rules, 1944. 8. After following the principles of natural justice, the Commissioner dropped the proceedings initiated vide the show cause notice dated 31- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt shall be annexed to the Balance Sheet and Auditor's report shall be attached to. The Chartered Accountant had verified all the essential facts and figures and the recorded entries before satisfying themselves about the correctness of the statement, facts, figures and explanations giver therefor. The Revenue relied on the CESTAT judgment in the case of M/s. Usha Rectifier Corpn. (I) Ltd. v. Collector of Central Excise, New Delhi - 2001 (130) E.L.T. 485 (Tri.-Del.) and prayed for confirmation of the entire computed demand of Rs. 24,16,510/- together with interest and imposition of penalty under Rule 173Q. 10. The respondents have contended that as against the claim of the Revenue they had produced the statutory records to show that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials, consumption of raw material, production of the finished product and removal of the finished product in excess over what is recorded in the statutory records. Thus, the demand for duty is solely based on assumptions, presumptions and calculations founded merely on the figures shown in the Balance sheet, which are claimed by the respondents as inflated for the purpose of getting bank credit. The Balance sheet and the fictitious transaction by the respondents, who floated fake units do lead one to endless suspicion that the respondents had resorted to suppression of production and surreptitious removal. But the suspicion, however, grave cannot take the place of proof of illegal manufacture and clearance. He held that in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is to be discharged by production of sufficient and affirmative evidence. We find that the Revenue has failed to discharge the onus cast upon them in this regard. We agree with the findings of the Commissioner that there is not even an iota of evidence of unrecorded production and clearance. 14. The reliance placed by the Revenue on Usha Rectifier s case cited supra appears to be misplaced for the reasons stated below. 14.1 The facts of the said case were distinguishable inasmuch as the production of the excisable goods namely, testing equipments worth of Rs. 31.26 lakhs in the factor by capitalization of (i) Raw material Rs. 26.31 lakhs (ii) Stores and Spares Rs. 0.02 lakhs, and (iii) Salary/Wages and other benefits Rs. 4.93 lakhs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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