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TMI Blog2013 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... availed on the strength of proper duty paying documents defaced by the officers of the excise department? b) Whether on the facts and in the circumstances of the case the Tribunal was correct in considering irrelevant materials and ignoring the relevant ones? c) Whether on the facts and in the circumstances of the case the Tribunal was correct in considering irrelevant materials and ignoring the relevant ones? d) Whether on the facts in the circumstances of the case the Tribunal was correct in not considering the decisions cited by the Appellants? e) Whether on the facts and in the circumstances of the case the Tribunal was correct in confirming the demand on goods prior to RG1 stage on the ground that same were not accounted for? f) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and statements of transporters and partners during the further investigation also came to be recorded. Based on this, a show cause notice was issued dated 29.3.2004 demanding amount of Rs.67,51,495/as denial of modvat credit on wire rods and wire bars falling during the period from May 1999 to April 2001, amount of Rs.10,96,768/being the duty of extrusions alleged to be clandestinely cleared during the period April 1999, June 1999 and July 1999 and amount of Rs.9,48,135/being duty on ingots alleged to be clandestinely cleared during the period from May 2002 to July 2002. In all, amount of Rs.87,96,398/was proposed to be demanded by way of this show cause notice. 5. Commissioner confirmed the demand and also upheld the penalty on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that main evidence Commissioner has relied upon, is that of statement of Shri Urjit Patel who was supervisor incharge of the furnaces used for melting aluminum scrap and production of ingots. What had weighed with the Tribunal is the fact that the appellant had neither denied the statement in respect of production capacity nor the fact that it was doing job work for M/s. Pankaj Extrusions. Noting the fact that person concerned was employed with the appellant firm for more than six years, mere stand of his not having seen the wire rods and bars being received in the factory was not found acceptable by the Tribunal. Tribunal gave its detailed findings by stating that General Manager may not be present all the time but it is unlikely that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58%.Actually Shri Patel has stated that the scrap which arises at various stages is recycled and the exact quantum of actual loss in process which is not recoverable has not been indicated anywhere by the appellants. There is not doubt that substantial amount of scrap is remelted but exact quantum cannot be made out. 3.6 To a query from the Bench, learned advocate stated that factory shed which contained extrusion plant, had a furnace of 2MT capacity obviously this would be meeting capacity and even if we assume that there was no wastage at all, total production of ingots/billets per year would be 600MT.Even if we apply wastage of only 30%,total production of extrusion production can not be more than 420 MT whereas raw material used is 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the company and the value of evidence produced in support thereof,the onus to prove that such goods were not produced and all the goods produced were accounted for shifts to the appellants, In view of the quality of the statements. statement of the partner as well as Shri Patel, we have to hold that department has discharged its burden of showing that appellant have produced the foods and did not account the same in RG1 register. Therefore, the onus has shifted to the appellant to show that they had accounted for all the goods produced in the RG1 register. Central excise duty is leviable on the manufacture. The taxable event is manufacture and not removal or sales. Therefore the fact that the department has not produced any evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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