TMI Blog2006 (7) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirm demand of duty in respect of goods not produced by the assessee. There is no other evidence on record showing that the appellants have cleared the said goods clandestinely. The entire case of the Revenue is based only on inferences involving unwarranted assumptions and cannot be upheld. Reliance has been placed on the Hon ble Supreme Court decision in the case of TRIVENI RUBBER AND PLASTICS VERSUS COLLECTOR OF C. EXCISE, COCHIN [ 1993 (3) TMI 124 - SUPREME COURT] . However, it is found that the issue before the Hon ble Supreme Court in that case was all together different and was relatable to the excess production than the ceiling limit, which the Hon ble Court found, was based upon lot of evidence in the shape of the statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory records is less than the input output norms, when compared with the quantities of concentrate, sugar, CO2 gas and crown corks. The additional production, alleged to have been removed by the appellant without payment of duty has been computed by applying conversion formula of concentrate in the standard norms at 100% yield in respect of each brand of product. 3. While contesting the above allegations during the course of adjudication, the appellants have strongly contended that the standard output norms based on 100% yield are applicable in ideal conditions only and are subject to variation on account of factors like batch size, production efficiencies plant condition etc. They quote para 7.1 of Standard Practices and Procedures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of the goods, calculation based upon 98.5% yield on concentrate issue for production, based on mere theoretical calculation cannot be taken against them. The Commissioner has observed that the onus to account for this shortfall shifts to the party as matter is within their special knowledge, and inasmuch as party has not been able to discharge this onus and has not explained the shortfall, it has to be held that differential production has been removed without payment of duty. Accordingly he confirmed the demands against the appellant along with imposition of personal penalty upon them. 6. We have heard Shri V.S. Nankani, Ld. Advocate appearing for the appellant and Shri K.M. Mondal, Consultant appearing for the Revenue. 7. It ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery as noticed during test inspection cannot be upheld in the absence of any tangible evidence on record. Similarly, we find that the Tribunal in the case of Pepsico India Holdings Ltd. v. Commissioner of Central Excise, Mumbai-II [2000 (117) E.L.T. 659 (Tribunal)] has observed that recovery of short levy sought on the ground that the soft drink concentrate should have produced the larger quantity of aerated water than that shown in the production registers as per the ratio indicated in the formula, is based on insufficient evidence and cannot be sustain. We may also refer to the Tribunal s decision in the case of Amba Cement and Chemicals v. Commissioner of Central Excise, Allahabad [2000 (115) E.L.T. 502 (Tribunal)] and in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re case of the Revenue is based only on inferences involving unwarranted assumptions and cannot be upheld. 10. At this stage, we also note that an identical allegations were made in respect of another unit of the same appellant situated at Pune. The Commissioner Central Excise, Pune vide his Order-in-Original No. 36/CES/2001 dated 18-12-2001 has vacated the notice, after taking into account the various factors like loss and wastage occurring at various stages of manufacture. The said order is reported to have been accepted by the Revenue and no appeal their against the same has been filed. 11. At the stage we may deal with the decisions relied upon by the ld. Advocate appearing for the Revenue. Reliance has been placed on the Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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