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TMI Blog2019 (3) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... n an additional production and has applied the per unit rate to this additional production without taking into consideration the indisputability of the total cost of production. In the absence of an attack on the total cost of production, the duty liability discharged on the said value for the entire period of two years is not susceptible to challenge as that which has not been paid as duties of Central Excise - In the absence of any logic for calculation of additional duties, there is no justification for sustaining this impugned order. Appeal allowed - decided in favor of appellant. - E/82-86/2009-DB - Final Order No.20244-20248/2019 - Dated:- 8-3-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. C. J. MATHEW, TECHNICAL MEMBER M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicating use of transport facilities and the undisputable expenditure on electrical energy. 3. Challenging these findings, Learned Counsel for the appellants submits that there is no dispute that the goods allegedly manufactured by them are also cleared to Whitefield and that, even so, valuation could only take recourse to rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. According to him, the quantum of power consumed did not make allowance for the utilization of diesel generating sets , that the nature of scrap could alter the power required, the need for energy to restart consumed energy at different efficiency, that the furnace efficiency is impacted by continuous use and that the norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 19 (42%) showed specific energy consumption of more than 1500 KWh/T and all with 60-90% direct reduced iron usage. 4. It is also further submitted that the decision of the Hon ble Supreme Court, upholding the findings of the Hon ble High Court of Allahabad, in Commissioner of Central Excise, Meerut-I v. RA Castings Pvt Ltd [2012(26) STR 262 (All.)], that excess production of steel ingots estimated on the basis of higher electricity consumption is not sufficient proof of clandestine removal, is applicable to the present dispute. It is pointed out by Learned Counsel that it is beyond imagination that 33,000 MTS of MS ingots could be handled clandestinely without bears a logistic nightmare and is inconsistent with the wherewithal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement is relied upon in the adjudication proceedings, it would be required to be established though the process of cross-examination, if the notice makes a request for cross-examination of the person whose statement is relied upon in the SCN. During investigation, a statement can be fortified by collection of corroborative evidence so that the corroborative evidence support the case of the department, in cases where cross-examination is not feasible or the statement is retracted during adjudication proceedings. It may be noted retracted statement may also be relied upon under given circumstances. Frivolous request for cross-examination should not be entertained such as request to cross examine officers of CERA. to point that failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y finding other than that of electricity consumption in excess of that which was ascertained to be the per unit requirement compared to the assessment under the compounded levy scheme does not appeal to us. 8. In the absence of any finding of un-accounted expenditure on manufacture or of any evidence of illicit removal, it would appear that there is a fundamental flaw in the findings of the original authority. The adjudication order has relied upon power consumption to allege that there has been an additional production and has applied the per unit rate to this additional production without taking into consideration the indisputability of the total cost of production. In the absence of an attack on the total cost of production, the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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