9911796707
TMI Blog2006 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... facture and removal of aerated waters during the period April 1999 to March 2003 and/or April 2003 to March 2004 respectively. The above allegations were based upon the verifications conducted by the visiting Central Excise officers on 7.10.2004 and the statements of various official recorded during the course of investigation. As a result of such investigation and verification of the record, it was alleged that the yield of their final product recorded in the statutory records is less than the input output norms, when compared with the quantifies of concentrate, sugar, C02 gas and crown corks. The additional production, alleged to have been removed by the appellant without payment of duty has been computed by applying conversion formula of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, further, observed that the actual shortfall in production yield in respect of concentrate during the period is to the tune of around 2.63% to 9.61% for the period involved. As such, he has concluded that the shortfall in production is explained by partial recording of production and clearance without payment of duty. 5. He has also considered the appellants contention that in the absence of any corroborative evidence as regards clandestine manufacture of clearance any goods, calculation based upon 98.5% yield on concentrate issue for production, based on mere theoretical calculation cannot be taken against them. The Commissioner has observed that the onus to account for this shortfall shifts to the party as matter is within their speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine removal we find that the same are based only on the theoretical calculations. The appellants contend wastage/loss occurs at various stages of production, over which they do not have any control. Hon'ble Supreme Court in the case of Oudh Sugar Mills Ltd. Vs. Union of India, 1978 (2) E.L.T. (J172) (S.C.) has held that allegations of clandestine production and removal based only on calculations of raw material fed into the process or on working of the machinery as noticed during test inspection cannot be upheld in the absence of any tangible evidence on record. Similarly, we find that the Tribunal in the case of Pepsico India Holdings Ltd. Vs. Commissioner of Central Excise, Mumbai-II, 2000 (177) ELT 659 (Tribunal) has observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction meaning thereby that they have produced less number of bottles than the standard input output norms. We are afraid that the above, cannot he made the basis for confirmation of demand of duty. If there is shortfall in production, Revenue cannot confirm demand of duty in respect of goods not produced by the assessee. There is no other evidence on record showing that the appellants have cleared the said goods clandestinely. The entire case of the Revenue is based only on inferences involving unwarranted assumptions and cannot be upheld. 11. At this stage, we also note that an identical allegation were made in respect of another unit of the same appellant situated at Pune. The Commissioner Central Excise, Pune vide his Order-in-Original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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