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TMI Blog2024 (3) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... mperature of furnace, per day frequency of the heats and the skill of the labourers. Revenue has not discussed this aspect at all. Moreover, the consumption of raw material i.e. copper scrap was not analyzed. Even the stock of fuel, raw material and final product was not taken at the time of audit so as to ascertain where the records maintained by the respondents were correct or otherwise. It is very surprising that the clearance of, allegedly excess produced, goods to different parties was not established; not even statement of a single buyer has been recorded; no verification at the transporter s to falsify the claim of the appellants that they have supplied the ingots manufactured by them to others. Without conducting any such investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gots/scrap in the year 2005-06; as per the above 2316356 kg of copper ingots could have been manufactured whereas, the appellants have shown production of 2500915 kg of copper ingots during the period; thus 184559 kg of copper ingots were shown to have been produced in excess without actually manufacturing the same; the appellants have wrongfully availed refund of Central Excise duty of Rs. 60,83,064/- fraudulently a show cause notice dated 21.05.2010 was issued to the appellant seeking the demand of wrongfully availed self credit. The show cause notice was adjudicated by the impugned order dated 28.04.2011 vide which the proposal in the show cause notice was dropped. Committee of Chief Commissioners having review the order have directed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Tribunal Delhi and Shingar Lamps Pvt. Ltd. 2002 (150) ELT 290 (Tri.-Delhi) and submits that Department is not required to prove the case with mathematical precision. The burden to rebut many facts relating to the illicit business remain with the concerned person who has the knowledge of the same. Adjudicating Authority should weigh the independent evidence on record. 4. Shri Vinamar Gupta and Shri Vibhore Gupta, Ld. Counsels for the respondent submits that the consumption of LDO could be different depending on the atmospheric temperature, quality of raw material, condition of the furnace, initial temperature of furnace, per day frequency of the heats and the skill of the labourers and therefore, the entire production capacity for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knon Ferrous Metals Ltd. 2016 (344) ELT 1100 (Tri.-Chan.) 6. Regarding the test check, the Ld. Counsel submits that it was conducted after keeping the furnace idle at room temperature for 66 hours; actual production over the year cannot be ascertained on the basis of a single heat; consumption of LDO depends on various factors; it has been held in the following cases that production cannot be alleged only on the basis of consumption of fuel: Nav Karnataka Steels Pvt. Ltd. 2008 (225) ELT 454 (Tri.-Bang.) A Arti Leathers Pvt. Ltd 2001 (136) ELT (Tri.-Mumbai) Padmanabh Dyeing Finishing Work 1997 (90) ELT 343 (Tribunal) Pure Enterprises Pvt. Ltd. 1999 (111) E.L.T. 407 (Tribunal). Mukesh Dye Works 2006 (196) ELT 237 (Tri.- Mumbai) 7. Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue has not discussed this aspect at all. Moreover, the consumption of raw material i.e. copper scrap was not analyzed. Even the stock of fuel, raw material and final product was not taken at the time of audit so as to ascertain where the records maintained by the respondents were correct or otherwise. It is very surprising that the clearance of, allegedly excess produced, goods to different parties was not established; not even statement of a single buyer has been recorded; no verification at the transporter s to falsify the claim of the appellants that they have supplied the ingots manufactured by them to others. Without conducting any such investigation, department cannot establish claim of excess manufacture just by extrapolating the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumed) from the factory without payment of duty. (c) Discovery of such finished goods outside the factory (d) Instances of sales of such goods to identified parties. (e) Receipt of sale proceeds, whether by cheque o by cash, of such goods by the manufacturers or persons authorized by him; (f) Use of electricity for in excess of what is necessary for manufacture of goods otherwise manufactured and validity cleared on payment of duty (g) Statements of buyers with some details of illicit manufacture and clearance; (h) Proof of actual transportation of goods, cleared without payment of duty (i) Links between the documents recovered during the search and activities being carried on in the factory of production; etc. 12. In view of the above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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