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2016 (4) TMI 543 - AT - Central ExciseDemand of differential duty - Clandestine removal of goods - Whether the Mill Scale Scrap / burning losses, claimed by the Respondent with respect to conversion of M.S. Ingots to M.S. bars got done from the job workers, is correct or the same should be in the range of 1 to 3% - Held that:- There is no evidence on record that any consignment of M.S. Bars, got manufactured from the job workers, was clandestinely diverted by the Respondent. The % age of Mill Scale Scrap / Loss has been clearly reflected in the Job work challans & the same has not been always claimed at more than 10%. Further no authority / study has been quoted by the Revenue to indicate that such Mill Scale Scrap / loss has invariably to be in the range of 1 to 3 %. This has been discussed by the first appellate authority. In the absence of any such evidence contrary to the claim of the appellant Mill Scale Scrap generated during job work can not be held as an evidence of clandestine manufacture & clearance of M.S. Bars. The same can also not be considered as sufficient evidence to demand differential duty from the Respondent. As per the above observation and by relying upon the decision of this bench in the case of CCE Calcutta-II Vs. Murttiwyn Industrial corp. [1995 (5) TMI 152 - CEGAT, CALCUTTA], a charge of clandestine removal can not be said to be established merely on the basis of presumption that normal Mill Scale Scrap / loss is in the range of 1 to 3%. In the absence of any such positive evidence regarding clandestine removal appeal filed by the Revenue is required to dismissed. Bench has not gone into the time barred aspect of the demand as on merits the appeal of the Revenue is not sustainable. - Decided against the revenue
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