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TMI Blog2005 (1) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... was a pre-determined order. He has also not considered the case law relied upon by them and submitted along with the letter dated 28.11.2005. It was stated that hearing on 29.11.2005 was fixed at 3.30 P.M. and the director of the applicants company remained in the office of the Commissioner till 5.30 P.M. but he was not heard and it was not possible for the Commissioner to pass the order on that date as he had left the office thereafter. It was also argued that the applicants were not provided with the relied upon documents mentioned in the show cause notice and they were handicapped in replying the show cause notice. Therefore, there has been violation of principles of natural justice and the order was passed by the Commissioner with pre-determined mind. Accordingly, stay may be given to them against the recovery of the amount confirmed and penalty imposed. It was also argued that the entire basis of the demand is consumption of electricity and the basis taken by the Commissioner that for production of one M.T. of ingots, 941 units of the electricity are required was based on determination of production capacity of furnace. It was pleaded that besides having furnace there was Rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el has sent fax intimating his inability to attend the hearing due to non-confirmed seat in the flight. The assessee has also submitted a letter dated 28.11.05 on 29.11.05 wherein they have more or less reiterated earlier submissions made in their letter dated 1.6.2005. Thus, it is clear that the learned Advocate was not present on 29.11.05 and since he had represented the case, the question of hearing the director does not arise. The director simply submitted the letter dated 28.11.05. It was also argued that electricity consumption for production of ingot and for production from the rolling mill has been separated in the chart enclosed to the show cause notice. Therefore, The production shown in the RG-I was found to be wrongly recorded than the actual production based on the consumption of electricity for ingots. It was, therefore, pleaded that the order of the Commissioner is based on the documents and facts and the applicants should be directed to deposit the entire amount in dispute. 3. On considering the rival submissions, we observe that on 29.11.05 the counsel for the applicants who was to go for hearing intimated the Commissioner that he is not able to come for hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y high. They were either almost equal to the assessable value of goods cleared by them or even more than that. It was also observed from the records that during the year 1997-98 they themselves have furnished electricity consumption figures of their unit for determining their annual capacity under section 3A of the Act and according to which 941 units of electricity is required to manufacture one MT of MS Ingots. Calculating the production by taking 941 units of electricity per MT, their total production for the period April, 2000 to December 2004 comes to 39,607.690 MTs whereas in the statutory records they had shown production of 9,758/920 MTs only. It has, therefore, been alleged in the show cause notice that the assessee had suppressed production of 29,848.770 MTs. of MS Ingots and evaded duty of excise amounting to ₹ 4,84,99,377.00 and education cess of ₹ 1,18,513.00 by clandestinely removing the said suppressed production. The assessee, though have not filed any proper reply but have denied the allegations of clandestine manufacture and removal of goods and evasion of duty by their letters dated 01.06.2005, 22.10.2005 and 29.11.2005. Thus, the main issue to be exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the number of total units of electric power consumed as per electricity bills of the assessee is divided by 941, the total production of MS Ingots during the period April 2000 to December 2004 comes to 39,607.690 MTs. However, the assessee in their statutory records i.e. RG-I have shown production of only 9758.920 MTs. It is, therefore, apparent that they had suppressed production of 29,848.770 MTs. of MS Ingots which they had removed clandestinely without payment of duty. The assessee in their letter dated 28.11.2005 have stated that State Electricity Authorities demand certain predetermined amounts as charges regardless of actually providing the electricity and so there can be no correlation between the electricity bills paid and the excisable goods produced. I agree with them but it is true only when comparison is done with the amount of electricity bills paid. The present case is not so. In the instant case the number of units of electric power consumed as shown in the electricity bills have been taken for arriving at the production. The number of total units consumed as shown in the bills is the actual quantity of electricity consumed by the assessee. As regards the assessee& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of clandestine removal, the department will not be able to produce evidence directly, but evidence could be gathered from the circumstances of the case. The said observations of the ld. Tribunal were based on the Hon'ble Supreme Court's ruling in the case of Collector of Customs, Madras vs. D Bhoormul (1983 (13) ELT 1546 SC) wherein it was upheld that the department is not expected to prove their case with mathematical precision to a demonstrable degree. The whole circumstances of the case appearing in the case records as well as other documents are to be evaluated and necessary inferences are to be drawn from these facts as otherwise it would be impossible to prove everything in a direct way. Recently the Hon'ble Tribunal Kolkata in the case of Sobha Gudakhu Factory vs. CCE Bhubaneswar-II (2001 (135) ELT 1055 (T)) has also held that failure of Revenue to establish the receipt of other materials would not demolish the Revenue's case. 4. The plea of the applicants that they were not supplied the relied upon documents is also not correct as show cause notice itself says that the copies of the documents are with them and they could not produce any letter by w ..... 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