9911796707
TMI Blog2004 (4) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... -96, 1-11-96, 3-2-97 and 10-6-97 were issued to the Appellants in respect of the period from April 96 to June 96, July 96 to Sept 96, Oct 96 to Dec 96 and Jan 97 to April 97 respectively demanding allegedly short paid duty during these periods from the Appellant alleging that on the basis of power consumption by the Appellant, their actual production is much more than what they have declared and the undeclared production of MS Ingots has been clandestinely cleared. The basis of this allegation against the Appellant was that while as per the experiments conducted by the Department in a similar unit of M/s. Alfa Castings, it had been found that for production of one m.t. of Ingots 1000 units of electricity is required in the Appellant s unit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand of Rs. 5,65,508/-. The Commissioner also imposed total penalty of Rs. 1,99,367/- under Rule 173Q(1) of Central Excise Rules,1944 as well as Section 11AC of Central Excise Act which had come inforce w.e.f. 28-9-96. Against this order of the Jt. Commissioner, the Appellant filed appeals before the Commissioner (Appeals) which were disposed of vide order-in-appeal No. 86-87 88/CE/APPL/KNP/2007 dt., 2-3-07 by which while the duty demand against the Appellant was upheld, the penalty was reduced to Rs. 90,000/-. It is against this order that the present three appeals have been filed. 2. Heard both the sides. 2.1 Sh. Atul Gupta, Advocate, learned Counsel for the Appellant, pleaded that the basis of the duty demand confirmed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted the ratio of 1100 units per m.t. which has been experimentally verified in the cases of Hans Castings; that in the Appellant s unit, in certain months, the power consumption was about 1000 units per m.t. while it was 1399 units m.t. during other months, which only shows that there was unaccounted production; that Hon ble Supreme Court in the case of Triveni Rubbers Plastics - 1994 (73) E.L.T. 7 (S.C.) has held that in a case where substantial quantities were found to have been removed without making entries in relevant records, the duty demand calculated on the basis of the production estimated only on the basis of power consumption, without considering the raw material penalty imposed on that basis can be sustained and that the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon these factors, there would be variation in the power consumption. It is, therefore, wrong to apply the power consumption ratio in respect of M/s. Hans Castings to the Appellant s unit more so when there was no other evidence of any unaccounted production or unaccounted sale. The judgment of Hon ble Supreme Court in the case of Triveni Rubbers Plastics (supra) cited by the learned DR would have been applicable to this case only if there had been some evidence of unaccounted production or unaccounted removal of the finished goods and in that case, the electricity consumption would have been an important evidence and could have been used for estimating the production. But only on the basis of electricity consumption ratio, which is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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