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TMI Blog2024 (3) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... p on this ground. In the case of COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [ 2010 (9) TMI 669 - ALLAHABAD HIGH COURT] , the Hon ble Allahabad High Court has held we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1) of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any mis-statement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal. The facts in the present case are similar and hence, the ratio of the decision is squarely applicable. Therefore, following these decisions, the confirmed demand is not sustainable on merits. Accordingly, the Appeal allowed on merits. Extended period of limitation - HELD THAT:- There are force in the Appellant s argument that the Department has not come out with any evidence towards suppression so as to invoke the extended period provisions. Therefore, the confirmed demand for the extended period is liable to be set aside on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash basis. No investigation was carried out and no private records have been seized to allege that any clandestine manufacture or clearance has taken place. On this issue he relies on the case law of Mohan Steels Ltd. vs. Commissioner of Central Excise, Kanpur [2004 (177) E.L.T. 668 (Tri.-Del.)] and Commissioner vs. R.A. Castings Pvt.Ltd. [2011 (269) E.L.T. 337 (All.)]. Therefore, he submits that the confirmed demand is liable to be set aside on merits. 5. He further submits that the Show Cause Notice has been issued by invoking the extended period provisions for the period September 2008 to July 2013. As per the learned Advocate, the Revenue has not brought in any evidence whatsoever to the effect that the Appellants have suppressed the quantity manufactured or quantity cleared by them in a clandestine manner. The appellants are normal Central Excise registered assessee and they are subject to verification and audit by the Central Excise officials. Therefore, he submits that the confirmed demand for the extended period is liable to be set aside on account of limitation also. 6. The Ld. AR for the Department reiterates the findings of the Adjudicating authority. He submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. The Tribunal has also considered the report of Dr. Batra, which has been relied upon for making the allegations that there was higher electricity consumption. It appears that Dr. Batra in his report has observed that for the production of 1 MT of steel ingots, 1046 units electricity required. 4. So far as the various after allegations relating to the fictitious firms and the income from the share trading, the Tribunal recorded the finding that since the incriminating statements of share brokers etc. have been relied upon in the proceedings, it was incumbent upon the Revenue to produce them as well as the investigating officer for crossexamination by the appellants, as was repeatedly requested by them. In the absence of the same, the statements of the share brokers etc. cannot be relied upon. The Tribunal further observed that even if, for the sake of argument, it is accepted that the income shown in the balance sheets is not the income derived form the sources declared by the appellants, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mptions. Regarding the claim of the Revenue that subsequent to passing of impugned orders the power consumption for manufacturing one MT of Ingots has reduced in factories of all the appellants, I am of the view that it cannot be a basis to sustain the findings in the impugned orders by assuming that there could not be any reason for lower consumption of electricity during the subsequent period. I also agree with the finding of the Hon ble Vice-President that in any event, this additional material is also only of power consumption. .. 95. I therefore concur with the findings of the Hon ble Vice-President and in my opinion, the judgment in R.A. Castings (supra) would be squarely applicable in the facts of the instant case in all the appeals. [ Emphasis supplied ] 11. In the case of Mohan Steels Ltd, cited supra, the Tribunal has held as under:- 10.1 Regarding the quantity of ferro alloys required to manufacture 1 ton of ingot/billet, the Commissioner has confirmed the demand on the basis that 9 kgs. ferro alloys is required for manufacturing 1 kg. of ingot/billet. This is not supported by any technical data/literature on the subject. On the other hand, the Report on Technology Evolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. 10.2 The Commissioner has also confirmed the demand of duty on the basis of allegation that a quantity of 5965.942 M.T. has been manufactured out of a quantity of 51,850 kg of ferro manganese shown as issued in RG23A, Part-1 register and no consumption of the same had been shown in log sheets. The Commissioner has not considered the submissions of the Appellants that the same was ferro manganese slag, a cheaper raw material and in support had produced the evidence and also contended that they had taken the credit of the duty paid on slag. Further no evidence regarding the removal of the final products said to have been manufactured has been brought on record. It has been held by the Tribunal in the case of Madhu Food Products v. CCE, 1997 (76) E.L.T. 197 as under :- There is no evidence on record either by way of seizure of goods in transit or elsewhere or any private records being seized to show that there was clandestine removal. No evidence has been brought on record to prove that the goods were removed from the factory premises without payment of duty, even the estimated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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