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TMI Blog2015 (10) TMI 2351X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that demand on the basis of electricity consumption is not sustainable - demand on the basis of electricity consumption to manufacturer the cement for whole of the period is not sustainable. We further found that during the course of investigation, certain documents were resumed and on the basis of those documents, electricity consumption was derived, the same was made basis of demand which is set aside. - only basis for the demand of duty is electricity consumption but no comments have been made by the adjudicating authority to demand on the basis of documents seized during the course of investigation - Matter remanded back - Decided in favour of Revenue. - Excise Appeal No. 3295 -3300 of 2010 & Excise Appeal No. 2344 -2349 of 2010 - FINAL ORDER NO. A/52415 -52426/2015-EX(DB) - Dated:- 20-7-2015 - Shri Ashok Jindal, Member (Judicial) And Mr. B Ravichandran, Member (Technical) For the Petitioner : Shri K K Anand, Advocate For the Respondent : Shri M S Negi, AR ORDER Per Ashok Jindal : Assessee M/s. Satguru Cement Pvt. Ltd. (Satguru) and the co-noticees to the show cause notice as well as Revenue are in appeals against the impugned order. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also conducted in the factory of M/s. Satguru on 29.10.2004 wherein certain records were seized and on the basis of those records, a show cause notice dated 19.12.2005 was issued wherein it was alleged that power consumed to manufacture of 1 MT of cement, electricity is 72.6 units. After issuance of show cause notice, the learned Commissioner obtained Chartered Engineers certificate dated 23.2.2006 from Shri Prakash Chandra Jain who certified that power consumption to manufacture of 1 MT of cement is 228 units. Another Chartered Engineer, Shri K M Thombre also inspected the factory and issued a certificate dated 7.3.2006 to certify that power consumption of electricity to manufacturer 1 MT of cement is 231.39 units. Another Chartered Engineer, Shri Akhilesh Pandit also inspected the unit and issued a certificate dated 14.3.2006 and certified that electric energy required for production of 1 MT cement is 230.85 unit. In those proceedings, the Commissioner after relying upon the above certificates, dropped the demand of duty which was based on power consumption. However, he confirmed certain demands on account of recovery of loose papers during search operation of the factory. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of electricity for production of 1 MT of cement. Infact their ground is that as documents seized during the course of investigation corroborates electric consumption of 74 units for manufacture of 1MT of cement, has been ignored by the learned Commissioner to demand duty. Therefore, Revenues main contention is that electricity consumption of 74 units for manufacture of 1MT cement is to be considered, which is not tenable in the light of decision of Tribunal in their own case for the earlier period. 6. On the other hand, learned AR opposed the contention of learned Counsel and submits that Shri Jagdish Agrawal, Director of M/s. Satguru in his statement has stated that their production capacity is 200 MT of cement per day and if same is assumed / taken as correct, in that case, the annual production capacity of the unit would be 60,000 MT per year. Therefore, the production capacity as well as electricity consumption corroborates the fact of clandestine removal of cement from their factory. In these circumstances, the impugned order is to be modified and the duty be demanded as proposed in their show cause notice. 7. Heard the parties. Considered the submissions. 8. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unted production. In view of this, we hold that the duty demand for the period from 01.04.2001 to 31.03.2003 based on the power consumption norm is not sustainable and, accordingly, the Commissioners order confirming duty demand of ₹ 26,12,951/- for the period from 01.04.2001 to 31.03.2004 has to be set aside. 9. While arriving at the said decision, this Tribunal relied on the decision of this Tribunal in the case of R A Castings Pvt. Ltd. vs. CCE Meerut I reported in [2009 (237) ELT 674 (Tri-Del)] which was confirmed by Allahabad High Court reported in [2011(269) ELT 337(All)] which was further confirmed by Hon ble Apex Court reported in [2011 (269) ELT A 108 (SC)]. Therefore, we hold that demand on the basis of electricity consumption to manufacturer the cement for whole of the period is not sustainable. We further found that during the course of investigation, certain documents were resumed and on the basis of those documents, electricity consumption was derived, the same was made basis of demand which is set aside. Further, the contention of M/s. Satguru is that their production capacity is only 30,000 MT per annum, although the documents seized during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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