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2005 (9) TMI 139 - AT - Central ExciseDemand - Evidence produced for clandestine manufacture - Pattern of power consumption - HELD THAT:- In present case, I find that the Department has not adduced any evidence to substantiate the charge of clandestine removal. There is no iota of evidence that the assessee has purchased any excess raw materials to manufacture any excess ingots in their factory over and above what has been required in their Books of Accounts. The contention of the Deputy Commissioner that the respondent-company could have purchased the raw materials from the market and might have used the same in the manufacture of ingots, was absolutely based on assumption and presumption. It is absolutely a settled principle of law that on the basis of presumption, no adverse conclusion is possible. The onus is on the Department to prove the clandestine manufacture and removal of the goods from the factory. There was no evidence of clandestine manufacture and removal of the goods from the factory. Only some rough note-books were found by the Investigating Officers, which did not reflect the actual production of their factory. The Department has also failed to prove as to whether there was sufficient evidence to prove that power consumption per tonne was based on evidence or records seized from the appellants or was based on any experiment conducted in the premises of the respondent-company. I find in the present case that neither there was a norm of consumption of power nor was there any evidence in the form of private records seized, nor was there any evidence which was based on any norm fixed by the Department under Rule 173E. In the absence of such a record or proof, it cannot be said that any excess production had taken place in the factory during the period in question. Similar view was taken in the case of Hans Castings Private Limited v. Collector of Central Excise, [1998 (3) TMI 298 - CEGAT, NEW DELHI]. Thus, I do not find any force in the appeals filed by the appellant herein. Consequently, I dismiss the same. The Cross- Objection filed by the respondent-company stands disposed of, accordingly.
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