TMI Blog2023 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... hem to treat the same as proceeds of ingots alleged to have been clandestinely produced and sold by the appellants. The entire action of the Revenue in this regard is without jurisdiction. Thus, it is clear that the law does not permit detriment of duty liability, and other consequences, solely on the ground that energy consumption is not reflective of actual production. The lack of legal sanction for determination of clandestine removal merely from unexplained energy consumption is now too well settled to be disturbed. As no evidence, other than the outcome of the test of 2008 and that too for two hours, been employed for determination of production for a five year period commencing in 2004, the conclusion of goods having been clandestinely produced and cleared is clearly unacceptable. As it is by addition of allegedly clandestinely removed production that exemption extended to small scale industry (SSI) has been denied, recovery of ₹ 78,99,000/- is also without legal sanction. Determination of duty liability on shortage of stock - HELD THAT:- Reliance placed by Learned Counsel on the decision of the Tribunal in CHANDPUR ENTERPRISES LTD. VERSUS COMMR. OF C. EX. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the monthly, and quarterly, returns to be fabricated. It was also held by the adjudicating authority that the statements from the partner of the appellant-assessee confirmed the alleged evasion of duty. 3. Assailing the refutation of their submission before the adjudicating authority that the allegations were made in the absence of any evidence of procurement of inputs, unrecorded manufacture or of clandestine removal that could then rely upon preponderance of probability , espoused by the Hon ble Supreme Court in Bhanabhai Khalpabhai v. Collector of Customs [1994 (71) ELT 3 (SC)] and the Tribunal in Gulabchand Silk Mills Pvt. Ltd. v. CCE, Hyderabad-I [2005 (184) ELT 263 (Tri-Bang)], the impugned order by holding that 4.6. JBSRM argued that there is no cogent convincing evidence produced by the department to support/ corroborate that there was actually excess production and clandestine removal. This plea is factually incorrect; the evidences/points made in sub-paras 4.3, 4.4 4.5 above provide good and sufficient corroboration of the allegation. After all, clandestine manufacture/removal of goods is an activity which is done surreptitiously; secrecy and stealth are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al feeding of heated material taken out of furnace for rolling, hardness of the re-rollable scrap, frequent break-downs which creates mis-rolls generation etc., which influences the actual production, but all these parameters were taken into account, while ascertaining the actual production. Thus, there may be some valid points in some of the above defences made by JBSRM, but those are at best covered within the derived limit of electricity consumption, ascertained during panchanama, and so, it is but reasonable to hold that the maximum consumption of electricity per 12.27 Kgs. of production of M.S. Bars is 1 KWH; I hold accordingly. This finds support in the Apex Court judgment in the case of Triveni Rubber and Plastics Vs. CCE [1994 (73) ELT 7 (S.C.)]. Though the then existing Rule 173E of CER,1944 referred to in the said judgment no longer exists now, the principle laid down therein is very much relevant as electricity consumption, being a major input, can be used to work out the actual production, whether specific legal provisions exists or not. in the impugned order, has, without any elaboration, decreed that all factors have been built into the multiplicand in the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue to prove what it alleges with positive and concrete evidence. In the absence of any positive evidence brought by the Revenue to discharge its onus, the impugned order cannot be sustained. 25. The law does not entitle the Revenue to disregard all the statutory excise records as well as audited financial accounts and records of the assessee-company, which have been duly verified and accepted by the competent authorities from time to time not only for central excise but also for purposes of income-tax etc. The Gujarat High Court in Arabian Express Line Ltd. v. Union of India (1995) ITR 31 has held that the income-tax officer does not have any authority or jurisdiction to levy tax on the petitioner-company. Further, the ITO was not having jurisdiction to decide whether or not the petitioner which is incorporated in United Kingdom is a genuine company. It seems that he has forgotten the fact that he is not having the jurisdiction to assess the petitioner-company in view of the covenant under Section 90 of the Income-tax Act between the Government of India and Government of United Kingdom. In any set of circumstances, the fact whether or not the petitioner-company whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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