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TMI Blog2014 (1) TMI 1645X X X X Extracts X X X X X X X X Extracts X X X X ..... hiv Prasad Rolling Mills have been passed by the same Commissioner i.e. CCE, Jaipur-I, it is not known as to whether the facts of the case against the Appellant Company and the facts of the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are identical, as it is not known as to whether the fact of unexplained wide fluctuation in power consumption per MT from month to month - there in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills, which have been dropped by the Commissioner. In any case, the Commissioner’s orders in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Mills have been challenged by the Department before the Tribunal and the Commissioner findings on the points of facts and points of law involved in these cases cannot be said to be final. The dropping of cases by the Commissioner against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are not the developments which change the balance of convenience, as, as explained in para 24 above, the facts of the present case may not be identical to the facts of the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills, and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice issued to other assessee based upon the same set of facts and evidence. One such reference is made to the Commissioner s Order-in-Original No. 91/2012-C.E., dated 31-1-2012 in the case of Shiv Prasad Mills Pvt. Ltd., Jaipur. 5. We heard both sides duly represented by Shri Bipin Garg, Advocate for the appellant and Shri V.P. Batra, ld. DR and ongoing through the detailed stay order passed by the Tribunal, we find the appellant s company is engaged in the manufacture of M.S. Rolled products. For manufacture of M.S. Rolled products, they require M.S. Ingots as raw material. The Revenue has conducted search on the premises of manufacturer/supplier of raw materials M/s. Nirmal Inductomelt Pvt. Ltd. and recovered certain incriminating documents. Scrutiny of the same revealed that the said M/s. Nirmal Inductomelt Pvt. Ltd. had cleared M.S. ingots to various units, including the appellant. The entries of ingots made in the appellant s records were less than the quantity of ingots shown to have been supplied by M/s. Nirmal Inductomelt Pvt. Ltd. The Revenue entertained a view that in the appellant s premises, receipt of raw materials is proved the same has been used in the clan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. (Pronounced in the open Court on ) Sd/- (Archana Wadhwa) Member (Judicial) 9 . [Per : Manmohan Singh, Member (T)]. - I have gone through the draft order recorded by Member (Judicial) modifying the Stay Order No. issued vide 11780-1781/12/Ex, dated 23-10-2012 whereby it was directed to deposit 25% of the duty demand by the company and Shri Lakhan Goyal, Director to deposit ₹ 2,00,000/- towards penalty. Operative part of the above stay order reads as under : In view of the above discussion, we are of the view that this is not the case for unconditional waiver and some conditions must be imposed for safeguarding the interests of Revenue. The appellant company is therefore directed to deposit an amount 25% of the duty demand confirmed against them within a period of eight weeks from the date of this order. As regards penalty on Shri Lakhan Goyal, since prima facie he, being Director of the appellant company, has dealt with the excisable goods which he knew to be liable for confiscation, the penal provisions of Rule 26 of Central Excise Rules, 2002 appear to have been correctly invoked for imposition of penalty on him. Therefore, he also has not been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any duty. During the course of checking, certain private records were recovered from the factory premises of M/s. Nirmal Inductomelt Pvt. Ltd. These records, were relating to the dispatch of ingots from April, 2003 to September, 2006 (up to 3-10-2005 for manufacture of the bars/saria or rods. 11.2 On examination of the private records recovered/resumed from the factory premises and Registered Office of M/s. Nirmal Inductomelt Pvt. Ltd., Jetpura, Jaipur on 3-10-2005, it was revealed that during the period 2-8-2005 to 1-10-2005 M/s. Barijoriwals s Jaipur had received a quantity of 54.56 MT of MS Ingots from M/s. Nirmal, Inductomelt whereas in their records, the assessee had shown receipt of 18.07 MT of MS ingots only. It came out that the assessee had received 36.49 MT of MS ingots without payment of duty from M/s. Nirmal during the period and further used by the assessee in the production of the finished goods which were cleared clandestinely without issue of any invoices and without payment of Central Excise duty. 11.3 The statement of Shri Lakhan Goyal, Director of the unit was recorded on 21-11-2005 under Section 14 of the Central Excise Act, 1994 wherein he confirmed the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from their books of account proved clandestine removal of the same without issue of any invoice and without payment of any duty by adopting the modus operandi as discussed. Suppression of production and clearance of MS Bars without payment of duty came to record when they received MS Ingots from M/s. Nirmal Inductomelt, Jaipur and not accounted for the same. The modus operandi of suppression of production surfaced. 13. From the findings in adjudication, it was established that appellants indulged in suppression of production which warranted pre-deposit by earlier stay order. Suppression of actual production was consequence of the disproportionate consumption of electricity which remained unchallenged. This is proved from electricity consumption bills of the unit pertaining to the months of July, 2003 to September, 2006. Production was compared with the probable production of MS Bar during the relevant period. There was vast variation in average monthly consumption of electricity ranging from 405 units (in the month of October, 2004) to 146.43 (in the month of April, 2005 units per Metric Ton. This wide variation in consumption of electricity was cause of suppression of produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g mill has been conducted by the department to determine the average power consumption for production of 1 M.T. of the rolled products, while there is some substance in the appellant s plea that the power consumption in a rolling mill will vary from one unit to another unit depending upon the technology, skill level of the workers, quality of the power supply and the nature of the finished products, we also find that the fluctuations in average power consumption in the appellant s unit from 160 per M.T. in some months to 316 units per M.T. in other months are too vide and the same cannot be accounted for the above-mentioned factors ...... . ..final hearing 16. Hon ble Tribunal in the case of Sridhar Casting Pvt. Ltd. v. CCE, Nagpur reported in 2012 (281) E.L.T. 270 (Tri.) wherein the paras 19 and 21 has held as under :- 19. In other cases, consumption of electricity per tonne of M.S. ingots is the basis of estimation of suppressed production. The data regarding the units of electricity consumed yearwise/monthwise have been taken from the assessee s own records viz. G-7 forms of MSEB, electricity bills, privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limestone was not explained. The High Court held thus :- The inference drawn by the second respondent based on shortage of clinkers and the excess quantity of limestone quarried during the relevant period was sufficient enough for the authorities to conclude as to the ultimate quantity of Portland cement which could have been produced from such excess quantity, which were not noted in the stock register, was well justified and we do not find any illegality or irregularity in such a conclusion drawn by the authorities for the levy of duty and the demand of duty imposed. Similarly, in the instant cases, when the department discharged their initial burden of proof by showing excess consumption of electricity (a major input) by the appellants, the latter did not have any valid explanation to offer. Hence the Revenue cannot be faulted for demanding duty on the steel ingots which could have been manufactured by consuming the excess quantity of electricity. 17. From the findings it is established that appellants indulged in suppression of production. There was vide fluctuations in consumption of electricity. Normal electricity required for manufacture one MT production of rolled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no power of review of Tribunal s order as held by Member (Technical)? Sd/- (Manmohan Singh) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) (Pronounced) 20. [Per : Rakesh Kumar, Member (T)]. - Heard both the sides in respect of the point of difference. 21. Shri Bipin Garg, ld. Counsel for the appellant, pleaded that the stay order No. 1780-1781/2012-Excise, dated 23-10-2012 directing the pre-deposit of 25% of the duty demand by the appellant company and an amount of ₹ 2,00,000/- by Shri Lakhan Goyal, Director of the appellant company within a stipulated period needs to be modified, as while the bulk of duty demand - ₹ 2,78,08,290/- has been confirmed by the impugned order only on the basis that while the average power consumption of the appellant company during the period of dispute was 263 units per metric tonne of the rolled products produced, the same based on certain investigations conducted in respect of M/s. Shree Sharma Steel Re-rolling Mills Pvt. Ltd. must be 102.09 units per metric tonne, the Commissioner in identical cases of duty demands against M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under proviso to Section 35F of the Central Excise Act, cannot modify that order subsequently like an appellate authority nor can keep tinkering with such order as and when applications for modification of the order are filed, that same view has been taken by the Hon ble Bombay High Court in the case of Baron International Ltd. v. Union of India reported in 2004 (163) E.L.T. 150 (Bombay), that the Tribunal has only limited power of rectification of the mistakes apparent from record in terms of Section 35C(2) and as such, has no powers to review any order passed by it, that this is not the case where any fact or any document placed on record or any point of law or point of fact raised in the grounds of appeal and argued was not considered by the Tribunal while passing the stay order dated 23-10-2012, that just because the Commissioner of Central Excise, Jaipur in December, 2012 in the cases against two other assessees involving similar facts has dropped the duty demands the impugned stay order cannot be reviewed, as the orders passed by the Commissioner are not final and the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills Pvt. Ltd. are identical. In the present case, in the stay order dated 23-10-2012 and in the order recorded by Hon ble Member (Technical), note has been taken of the fact of very wide fluctuation in power consumption per MT of the rolled products manufactured - from 213 units per MT in some months to 511 units per MT in other months during the period from July, 2003 to September, 2006, for which there does not appear to be any satisfactory explanation and which lends support to the allegation that appellant were under-reporting their production of rolled products. But it is not known as to whether this factor was therein the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills. Moreover, the Commissioner s orders in cases of M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Rolling Mills Pvt. Ltd. have been reviewed by the Committee of Chief Commissioners and review appeals have been filed which are pending before the Tribunal and as such, the findings of the Commissioner in these cases cannot be said to be final. Therefore, passing of the order by the Commissioner dropping the proceedings against M/s. Natani Roll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 24. In the present case, though the impugned Order-in-Original in case of the Appellant company and the Orders-in-Original in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills have been passed by the same Commissioner i.e. CCE, Jaipur-I, it is not known as to whether the facts of the case against the Appellant Company and the facts of the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are identical, as it is not known as to whether the fact of unexplained wide fluctuation in power consumption per MT from month to month, as noted in paras 14 and 15 of the order recorded by Hon ble Member (Technical) is also there in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills, which have been dropped by the Commissioner. In any case, the Commissioner s orders in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Mills have been challenged by the Department before the Tribunal and the Commissioner findings on the points of facts and points of law involved in these cases cannot be said to be final. 24.1 In my view, the principle of avoiding injustice while considering the application f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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