9911796707
TMI Blog2010 (9) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is solely based on a “preponderance of probabilities” - No documentary evidence of production and removal of any unaccounted quantity of finished goods was found - No evidence of consumption of any specified quantity of raw material was found - No evidence was gathered from any buyers - Held that: the demand of duty based on probabilities cannot be sustained - The appellant has made out prima facie case for waiver and stay - Hence,the result be waiver of pre-deposit and stay of recovery in respect of duty and penalty amounts. X X X X Extracts X X X X X X X X Extracts X X X X ..... ts) of the said range of energy consumption came to be chosen for working out the quantum of excess (clandestine) production of M.S. ingots in the assessee's factory for the period 2003 to 2007-08. Obviously, the extended period of limitation was invoked, on the ground of suppression of facts etc. for demanding the duty for such period. The submission of the ld. counsel today is that there is no valid basis for the demand of duty, which, according to him, is solely based on a "preponderance of probabilities". No documentary evidence of production and removal of any unaccounted quantity of finished goods was found. No evidence of consumption of any specified quantity of raw material was found. No evidence was gathered from any buyers. Even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. counsel has particularly referred to a set of old show-cause notices which were cited in the addendum to the subject show-cause notice. These old show-cause notices, barring one, sought to recover certain amounts of CENVAT credits which were alleged to have been irregularly availed by the assessee. The remaining show-cause notice sought to recover an amount of CENVAT credit on the ground of non-receipt of inputs in the factory. On these new facts alleged in the addendum to the subject show-cause notice, the ld. counsel submits that, if the assessee was alleged to have received inputs in their factory during a major part of the period of dispute, how can there be a case for the Revenue to allege clandestine manufacture of M.S. ingots d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the submissions, we are of the view that the appellant has made out prima facie case for waiver and stay. The impugned demand of duty is based on what was found to be excess consumption of electricity, which, in turn, is based on a technical opinion given by the IIT Professor. It appears, the adjudicating authority repeated a material mistake which was there in the show-cause notice. The show-cause notice relied on the said technical opinion which was to the effect that one MT of M.S. ingots could be manufactured by consuming electric energy in the range of 555-1046 units. The show-cause notice, however, took the opinion in a materially different way (555-1026), which came to be repeated in the Commissioner's order. This apart, the ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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