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2017 (11) TMI 1770 - HC - Central ExciseClandestine manufacture and removal - MS Ingots - demand based on assumptions and presumptions - As per the petitioner, highest case of the department is that there is some possibilities of clandestine removal of the M.S. Ingots, which is a final product of this petitioner - consumption of electricity - no substantive evidence - Held that:- Several decisions have been given by the Tribunals which have been confirmed by Hon'ble High Courts that electricity consumption alone if adopted as a basis of the demand, the same is not tenable. The respondents can take the electricity consumption pattern as a corroborative piece of evidence, but, in absence of substantive proofs - The electricity consumption report like Dr. N.K. Batra report can hardly be treated as a substantive evidence. Time and again, the decisions have been given by the Tribunals, but, the respondents departments are turning deaf-ear to. In this case, the respondents are relying upon Dr. N.K. Batra's report. All these are nothing, but, the possibilities, for clandestine removal, but, for proving the clandestine removal, the substantive piece of evidence is must. The department has not done any home work and the show cause notices dated 30.07.2008, 04.02.2009, 18/19.11.2009 (Annexure-1 Series) have been issued. This type of shortcut should not have been followed by the department. There is no shortcut for success. The documents and evidences could have been collected very easily by the department, if at all, department is of the opinion that there is a clandestine removal of finished product viz M.S. Ingots by the petitioner. The respondents are directed not to mention Dr. N.K. Batra's report in their show cause notice unless an experiment is carried out by the respondent department in the factory premises of the notice for production of 1 MT or for production of more than sufficiently large quantity like 1000 units etc. in any other cases, because electricity consumption depends upon the nature of machinery. Even two refrigerators of same kind and type and capacity may not have the same consumption of electricity, because one may be new and another may be old. The Order-in-Original is based upon mere presumptions and possibilities, and, nothing has been proved at all by the respondents, especially unaccounted manufacturing of M.S. Ingots and the clandestine removal thereof. - This Court is remanding the matter to the Commissioner, Central Excise & Service Tax, Jamshedpur. This Court is not much going into detail of further arbitrariness in the Order-in-Original. There appears to be very high sounding reasons, but, if they are viewed with zoom lens camera, it appears that nothing is proved by the respondents. Petition allowed by way of remand.
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