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TMI Blog2011 (4) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... red by Dr. Batra is double converter whereas the induction furnace of BSPL is a single converter - partner had explained the higher consumption of electricity and had not admitted clandestine removal at all - appellant has been able to make out a prima facie case in their favour for grant of stay, requirement of pre-deposit of duty waived, penalty and interest and grant stay against recovery of the same during the pendency of the appeals - E/676-677/2009 - S/356-357/2011-WZB/C-II/(EB) - Dated:- 8-4-2011 - S/Shri B.S.V. Murthy, Ashok Jindal, JJ. S/Shri D.B. Shroff and Ashok Singh, Advocates, for the Appellant. Shri W.L. Hangshing, Jt. CDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. M/s. Bhavshakti Steelmines P. Ltd. ( BSPL for short) is engaged in the manufacture of MS ingots. Duty demand of Rs. 1,40,30,004/- has been confirmed with interest on the ground that BSPL were indulging in suppression of turnover of MS ingots by not recording the actual production and clearing the same clandestinely without payment of duty. The period of demand is 2003-04 and 2004-05 and the demand is on the basis of electricity consumption as compared to the technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plastics v. CC Cochin reported in 1994 (73) E.L.T. 7 (S.C.) to support his contention that without determining the normal production by considering all the factors relevant to the issue, normal production cannot be determined. He submits that even though this decision was rendered in the context of erstwhile Rule 173E of the Central Excise Rules, 1944, the decision becomes relevant in view of the fact that in this case electricity consumption is the sole factor taken into account by the ld. Commissioner for reaching the final conclusion and quantum of production. 3. He also submitted that the issue is covered in favour of BSPL and second appellant by the decision of Hon ble Allahabad High Court in the case of R.A. Castings P. Ltd. Ors. decided in the case of Central Excise Appeal dated 9-9-2010 [2011 (269) E.L.T. 337 (All.)]. Further, he also submits that the SLP filed against this decision by the Revenue was dismissed [2011 (269) E.L.T. A108 (S.C.)] and hence the issue has attained finality. The issue involved in the case of R.A. Casting Pvt. Ltd. and the present appellant BSPL are similar and therefore appellant has a strong prima facie case in their favour for grant of sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be wrong by producing certificate from the qualified chartered accountant. He submits that the department had erred in working out cost of production since opening balance, closing balance etc. were not taken into account. For both the years in question, the appellants had submitted separate cost of production certificates which showed that the sale price of the finished goods was more than the cost of production in view of the fact that the appellant had made profits in both the years from MS ingots. Further, he also drew our attention to some of the cases in Sridhar Casting wherein the department had found that the appellant had shown profits by stock market trading and trading activity unlike the case of the appellant in this case. He also submits that the Commissioner has not at all discussed the certificate of the chartered accountant submitted by them and has simply ignored them. Similarly he also submits that department has not given any evidence or literature to show that the wastage has to be less than 10%. In the absence of any such evidence, the conclusion that wastage is more is not acceptable. 5. Ld. JCDR submitted that MS ingots is a commodity very prone to evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion which has not been done. This is because, the appellants have contended that the type of furnace used by them is a single converter whereas the type of furnace considered by Dr. Batra is a double converter. This, in our opinion, is a very important aspect which has not been considered by the ld. Commissioner at all. Thus the two Chartered Engineers opinion have not been contradicted by the Revenue and the type of furnace mentioned by the appellants is different. It was necessary for the department to have considered these reports and failing to do so has weakened the case. Another point that has been taken into account by the learned Commissioner in confirming the demand is that on certain days there was excess electricity consumption but there was no corresponding production. This has been explained by the appellant that on those days it was quite possible that the electricity might have failed in between when the furnace was on and when electricity fails in between the whole quantity lying in the furnace goes wastage. This contention has not been considered. Probably if expert opinion was taken by Revenue, as suggested by Chief Commissioner, on this also his opinion could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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