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TMI Blog2023 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... n excess electricity consumption or other similar variations to establish clandestine manufacture and removal of goods. Thus, it is observed that the demand raised by the department is based merely on assumptions only. It is observed that the department has not brought in any evidence on record to substantiate the allegation of clandestine clearance. Accordingly, the demand of duty calculated by the department only on the basis of the excess quantity mentioned in the railway receipts, is not sustainable. Thus, there are no infirmity in the OIO passed by the Ld. Commissioner. Accordingly the OIO dated 28.03.2013 passed by the Ld. Commissioner is upheld. The impugned order passed by the adjudicating authority upheld - appeal of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frastructure inside the unit enabled the Respondent to fill the wagons inside the unit. The loose Calcined Alumina is loaded directly into BTAP wagon from Silo and after weighment of each wagon at a separate static weigh bridge located at the loading point, central excise invoice is raised based on the quantity as reported in the said static weigh bridge. The railway authorities use in-motion weighbridge to weigh the loaded wagons. The recipient unit i.e., the Hirakud unit avails credit of excise duty paid by the Respondent and the quantity recorded in its books is equal to that mentioned in the excise invoice issued by the Respond 2. During the course of audit of excise records of the Respondent, the department observed that in cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Respondent made the following submissions: (i) The demand proposed in the present case is based on assumptions and presumptions. The demand of excise duty has been made in the Notice on the allegation that there is a difference in the quantity mentioned on the railway receipts and central excise invoices prepared by the Respondent which implies that the Respondent has removed excess quantity without the cover of invoices. It is absolutely wrong to calculate any excess removal only on the basis of the quantity mentioned in the railway receipts. (ii) It is true that the railways charge freight on the basis of the quantity mentioned in the railway receipts. The Respondent submits that they have not accepted the erroneous weight men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine removals by the Respondent. No such evidence has been adduced by the department either in the show cause notices or appeal filed before this Tribunal. Therefore, the ground on which the department proposed to recover the differential duty is incorrect and baseless. Hence, the appeal filed by the department is liable to be rejected. (v) The Respondent submits that there is no evidence to allege that there has been excess production; that there has been excess receipt of corresponding raw materials, that there has been excess electricity consumption or other similar variations to establish clandestine manufacture and removal of goods. Hence, the demand sought to be recovered in the appeal by the department is based merely on assumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions only. 7. We observe that the adjudicating authority has given a clear finding in the impugned OIO while dropping the demand. The observations made by the adjudicating authority are summarized below: the percentage of difference follow a random pattern which varies from 1.83% to 9.23% (invoice quantity taken as base) and 1.79% to 8.45% (railway quantity taken as base). On the other hand, difference shown by the weighbridges installed at Respodent s Muri unit and Hirakud unit is well within standard tolerance limit of +/- 0.5%, The weighbridge of the Respondent is certified by competent authority. [Para 23-25 and 30 of the OIO] the accuracy of the in-motion weighbridge depends on number of factors which are difficult to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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