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TMI Blog2017 (9) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to possible unaccounted manufacture and clearance of dutiable items. Merely on the basis of power consumption of the appellant unit, allegation of unaccounted production of M.S. ingots and its clandestine removal could not be sustainable. Appeal allowed - decided in favor of appellant. - Excise Appeals Nos.672 and 673/2010-EX(DB) - A/55288-55289/2017-EX[DB] - Dated:- 19-7-2017 - Mr. (Dr.) Satish Chandra, President And Mr. B. Ravichandran, Member (Technical) Rep. by Shri B. Garg, Advocate for the appellant. Rep. by Shri H.C. Saini, DR for the respondent/Department. ORDER Per: B. Ravichandran These two appeals are against common impugned order dated 23.12.2009 of Commissioner of Central Excise, Jaipur-I. The main appeal is by M/s. Barijoriwala Rolling Mills Pvt.Ltd., Jaipur. The second appeal is by Shri Lakhan Goel, Director of main appellant. The main appellants are engaged in the manufacture of M.S. rolled products like bars, angles, flats falling under Tariff Heading 7214 of Central Excise Tariff, liable to duty. The raw material for the manufacture of these items are M.S. Ingots. The central excise officers conducted certain veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the basic fact that consumption of electricity widely varies from unit to unit, based on various criteria like age of the machine, capacity and quality of raw material and variety of final products manufactured. Ld. Counsel submitted that the Revenue registered cases against various manufacturer, similarly situated, based on common investigation and on identical set of facts. Many of these cases have reached the Tribunal level and the demands were set aside. In fact, the very same adjudicating authority dropped the demand made against M/s. Shiv Prasad Mills Pvt. Ltd. vide his order dated 31.12.2012. He categorically held that though electricity consumption is vital factor and indicative of production but in the absence of legal authority, the law does not permit to raise the demand exclusively on the basis of electricity consumption. Such consumption alone is not sufficient to raise the demand though it can act as corroborative evidence. He further held that the electricity consumption of 102.09 per M.T. taken from another unit is not a uniform standard that can be applied to assessee, as no technical verification or inspection was carried out in the assessee s factory. The Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l distinction between the main appellant and SSSRM. Even otherwise, we note that no examination or technical test has been conducted in the main appellant s unit, to arrive at the correctness of power consumption and also to get additional corroborative evidence with reference to possible unaccounted manufacture and clearance of dutiable items. We note that almost identical set of facts were dealt with by the very same adjudicating authority in the case of M/s. Shiv Prasad Mills Pvt. Ltd., Jaipur. In the said case also, the demand arose based on the common investigation. The Original Authority held as below:- The Revenue contested the above findings by filing appeal before the Tribunal. The Tribunal vide Final Order dated 10.04.2015 upheld the above findings. The observation of the Tribunal, which is relevant to the facts of the present case is as below:- Coming to the first piece of evidence - the private ledger book of M/s. NIPL which contain the details relating to supply of MS Ingots to the respondent unit during the period August, 05 to October, 05, it is seen that other than the entries in the private ledger book of M/s. NIPL and the statement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this, we also find that that National Institute of Secondary Steel Technology, established by the Ministry of Steel, Govt.of India conducted a study and submitted a technical report on performance and energy consumption of re-rolling mills, where electricity consumption was arrived at 215 units per MT and Government of Rajasthan in the notification issued under compounded levy scheme for charging sales tax from rolling mills has mentioned power consumption of the medium size rolling mill as 225 units per MT. In view of this, there is absolutely no justification for adopting power consumption norm of 102.09 units per MT of M/s. SSSRM in respect of the respondent. Ld. DR has cited the judgement of the Apex Court in the case of Triveni Rubber Plastics Vs. CCE-1994 (73) ELT 7 (SC) wherein the apex court held that where the accounts have been found to be fabricated and untrue, the figures of raw materials utilized or the particulars of labour employed may not be available, the demand arrived at by assessing normal production on the basis of electricity consumed, cannot be faulted. In our view, this judgement is with regard to Rule 173E of the erstwhile Central Excise Rules, 1944, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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