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2009 (6) TMI 858 - AT - Central ExciseClandestine removal - Evidence - The main allegation against the appellant is that they had abnormally consumed power to the extent of more than 50.6% after the withdrawal of fixation of APC under Section 3A of the Central Excise Act. Further, after 4/2000, the increase in consumption is uniform up to 7/2001 - Held that: - whole demand is theoretical - clandestine clearance cannot be sustain in the absence of corroborative evidence. It is true that electricity consumption is a very vital factory. However, the appellants had stated that the electricity consumption depends on several factors, like fluctuations, quality of raw materials consumed and also the age of the furnace etc. These things have not been contraverted adequately by the Revenue. We are not convinced that the electricity consumption would be the same in two different units. A correspondence with the KSEB reveals that there was indeed a problem of voltage fluctuations. With regard to the letters from Prince Rolling Mills Pvt. Ltd., Prince Alloys Pvt. Ltd. and P.K. Rolling Mills Pvt. Ltd., the appellants had stated that there has been reports of electricity thefts by several iron and steel company in Kerala and therefore no conclusion can be drawn from these units. The burden to prove clandestine removal is on the department. No doubt excess consumption of electricity raises a doubt or suspicion with regard to the .quantum of production by the appellant. Mere suspicion cannot lead to the demand - appeal allowed - decided in favor of appellant.
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