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2023 (7) TMI 425 - AT - Central ExciseClandestine Removal - demand on account of the electricity consumption without any corroborative evidence whatsoever in any form - corroborative evidence or not - HELD THAT:- There is nothing to indicate that the Appellant has given this as the figure for the normal production in other months. Therefore, there is no basis to adopt this formula to arrive at the alleged clandestine production. The Electricity Bill cannot be exactly co-related with the monthly production in the factory. Apart from this, it is observed from ER-1 Returns that the quantities manufactured in other months have been cleared in the months where the production is shown as Nil - The Audit has failed to take note that the stock can always be sold in the next month. Further, the entire consumption of Electricity unit will not directly result in the finished products. The product will be at several stages as initial product, semi finished product, finished product etc. All these facts have been ignored in their over enthusiasm by Audit to fasten the case on the Appellant. From the Recorded statements, it is seen that the Authorized Signatory has stated the facts and is not any form of any confessional recording about any clandestine manufacture or clearances. After going through these factual details it emerges that the only base on which the demand has been confirmed, is on account of the electricity consumption without any corroborative evidence whatsoever in any form. In the case of M/S UNION ENTERPRISES & ANOTHER VERSUS UNION OF INDIA & OTHERS [2014 (5) TMI 93 - CALCUTTA HIGH COURT], the Hon’ble Kolkata High Court has considered the Allahabad High Court’s decision in the case of R. A. Casting on similar issue held that mere excess consumption of electricity without any corroborative evidence relating to the purchase of the raw material, conversion of the raw material into a final products and clearance from the manufacturing unit to the respective buyers are produced does not raise presumption of evading the duty. As per the factual matrix, since the Department has relied on the Electricity consumption alone without any corroborative evidence whatsoever, the decision of the Hon’ble High Courts are squarely applicable. Appeal allowed.
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