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2024 (3) TMI 848 - AT - Central ExciseClandestine removal - it is alleged that respondents have shown excess manufacture in order to avail excess refund to the tune of Rs. 60 lakhs - burden of proof lies with the prosecution or not - suppression of actual consumption of LDO required for manufacturing unit quantity of final product - Extended period of limitation - HELD THAT:- Revenue has missed out the fact that consumption of fuel depends on the atmospheric temperature, quality of raw material, condition of the furnace, initial temperature of furnace, per day frequency of the heats and the skill of the labourers. Revenue has not discussed this aspect at all. Moreover, the consumption of raw material i.e. copper scrap was not analyzed. Even the stock of fuel, raw material and final product was not taken at the time of audit so as to ascertain where the records maintained by the respondents were correct or otherwise. It is very surprising that the clearance of, allegedly excess produced, goods to different parties was not established; not even statement of a single buyer has been recorded; no verification at the transporter’s to falsify the claim of the appellants that they have supplied the ingots manufactured by them to others. Without conducting any such investigation, department cannot establish claim of excess manufacture just by extrapolating the results of study of a single heat or a few heats. The charge levelled against the respondents is a serious charge. A charge of this nature cannot be summarily proved without conducting any commensurate investigation. It is now a settled principle that clandestine removal is a charge and has to be proved with all other concerned activities. The adjudicating authority has correctly analysed the facts of the case and has drawn legally sustainable conclusions - Appeal of Revenue dismissed.
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