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2017 (4) TMI 940 - AT - Central ExciseClandestine manufacture and removal - Ms Ingots - Held that: - The Appellant has given certificate issued by the Chartered Engineer that the Capacity of two furnace installed in the Appellant Unit is 5 Mt each. However during the test check by the officers the capacity of molten material was found to be 5.450 MT and 5.600 MT. In this context if some more quantity can be processed in the furnace than its installed capacity the same cannot be made a ground to allege that the assessee always processed the goods more than the installed capacity. The Appellant in his submission has stated that the pressed Scrap will take less space rather than non pressed scrap and therefore the processing capacity of furnace would vary. We are of the view that otherwise also the processing capacity of the furnace would depend upon the nature and quality of raw material as well as other factors. The maximum capacity result of a heat cannot be applied in each and every heat. Therefore the results of yield would vary and cannot remain constant. Even otherwise the capacity of furnace can not be a ground to demand duty. It has to be shown that the goods were indeed manufactured in the Appellant factory and the same were cleared - In absence of evidence of receipt of raw material and clearance of finished goods, absence of buyers and receipt of any money consideration, the charges of clandestine removal cannot be sustained. Appeal allowed - decided in favor of appellant.
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