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2015 (7) TMI 460 - AT - Central ExciseDemand of duty on estimated production based on power consumption - period of 01.04.2001 to 31.03.2004 - During this period the factory of the appellant company was not paying any duty and was not registered with the Central Excise Department, as it was availing full duty exemption. - Penalty u/s 11AC - Held that:- When the Department itself had appointed the Centre of Energy Studies and Research for carrying out a survey of the appellant s cement plant and determining their power consumption ratio and when the Institute has submitted a report mentioning their power consumption as 212 unit per M.T. it is totally incorrect for the Commissioner to discard this opinion of an expert and arrive at his own power consumption norm of 155 units by assuming that during the period from 01.04.2001 to 31.03.2004 the appellant had also used electricity generated by the DG sets for which we do not find any evidence. In fact, the Department itself in its appeal against Commissioners order disputes the Commissioners findings regarding generation of electricity from D.G. sets. Merely on the basis of power consumption norm and that too when there are serious doubts about its correctness, duty demand cannot be confirmed against an assessee, when there is no other corroborative evidence of unaccounted purchase of raw-material and clearance of unaccounted production. In view of this, we hold that the duty demand for the period from 01.04.2001 to 31.03.2004 based on the power consumption norm is not sustainable and set aside. However, the duty demand of ₹ 16,57,293/- for the period from 01.04.2004 to 27.10.2004 alongwith interest and equivalent penalty under section 11AC is upheld. - Decided partly in favour of assessee.
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