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2017 (2) TMI 304 - AT - Central ExciseClandestine removal - the quantity of Ethyl Acetate that should have been manufactured by them during the year 2005-06 should have been 1887825 kg., wheras the actual quantity manufactured was 1985245 kg. - whether demand of duty on differential quantity of goods justified? Held that: - input/output data in ER-5 return for the year 2007-08 is used to estimate quantum of goods manufactured in the year 2005-06. This estimated manufacture is not covered by any of the provisions of Central Excise Act or Rules made thereunder. The said Show Cause Notice has not invoked any enabling provisions which enables Revenue to use input/output data given in ER-5 return for charging Central Excise duty on estimated goods that should have been manufactured by the appellant. The principle laid down is that if the provisions of erstwhile Rule 173E of Central Excise Rules, 1944 are invoked then it was mandatorily required to fix norm for electricity consumption, notify them to manufacturers and thereafter ascertain reasons for deviations, and after taking into account the consumption of various inputs, requirements of labour, material, power supply and conditions for running the plant together determine the goods manufactured and demand duty on the differential quantity of goods. Since such exercise was not carried out, therefore, I find that the impugned Show Cause Notice is not sustainable in law - appeal allowed - decided in favor of appellant.
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