9911796707
TMI Blog1994 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... od from 24-2-1988 to 15-8-1988. However, in the Show Cause Notice while calculating the duty short paid, the benefit of those cases where the working hours recorded in the production slips were more than the ones shown in the log books, has not been given during the period from 1-3-1988 to 15-8-1988 which I hold to be incorrect. After allowing this benefit, total hours for which the mill had run extra, comes to 228.3 hours. On the basis of average production per hour during the relevant period, the quantity of cement less accounted for and duty evaded come to 471.150 MT and Rs. 91,622.06 (BED Rs. 87,350.99 + SED Rs. 4,271.07) respectively I, therefore, demand a duty of Rs. 91,622.06 under Rule 9(1) read with Section 11A of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement obtained physically and such back calculated working hours of the Cement Mill were being reported in the production slips, while the actual working hours of the Cement Mill as per the reading of the Cement Mill hour meter are reported in the Log Sheet of the Cement Mill. As the explanation explaining the difference in working hours between the private records and the statutory production slips was not found satisfactory, a show cause notice was issued to the appellant asking them as to why Central Excise duty amounting to Rs. 1,39,217.20 should not be demanded from them as also why penalty should not be imposed on them. 3. Shri N. Singh, the ld. Consultant appearing for the appellant submitted that the method of calculati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption of raw material dis-proportionate to the quantity of cement produced and recorded in statutory records; that raw materials account of the appellant's firm were being examined by the Department from time to time and no discrepancy was ever detected; that the demand was barred as the same has been raised much beyond the period of six months; that the order passed by the ld. Addl. Collector is based on pure surmises as no evidence has been brought on record to prove that there was any clandestine removal or there was use of raw material dis-proportionate to the production of the Cement during the relevant period. Having regard to all the facts and circumstances the ld. Consultant prayed that the order passed by the ld. Addl. Collector ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slip shows the smaller number of hours than those shown by the hour meter and noted in the Log Book. Thus there is no consistency. If the assessee desired to show less production according to the production slips then he would have uniformly recorded the working of the Cement Mill for a small number of hours than those actually worked and shown by the hour meter and noted in the Log Book, this is not the case. There is no other evidence brought on record to show that the larger number of bags were used a larger quantity of raw materials were used. No evidence has been brought on record that there was clandestine removal. The Hon'ble Supreme Court in the case of Oudh Sugar Mills v U.O.I, reported in 1978 (2) E.L.T. (J 172) [Paras 8 to 14] h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to show that there was use of a large quantity of raw materials or a large number of bags. 8. No evidence has also been brought on record that any quantity out of this large average calculated on the basis of a number of variable factors and after utilisation of a large quantity of raw materials and use of a large number of bags was actually removed from the factory. No record, private or statutory has been brought as evidence to show that there was removal of this large quantity supposed to have been manufactured and thus, we find that suppression of production and clandestine removal has not been proved. 9. In the circumstances and the evidence on record, we hold that the demand of duty on the presumed quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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