TMI Blog2009 (6) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Pvt. Ltd., the appellants had stated that there has been reports of electricity thefts by several iron and steel company in Kerala and therefore no conclusion can be drawn from these units. The burden to prove clandestine removal is on the department. No doubt excess consumption of electricity raises a doubt or suspicion with regard to the .quantum of production by the appellant. Mere suspicion cannot lead to the demand - appeal allowed - decided in favor of appellant. - E/1075-1079/2005 - 830-834/2009 - Dated:- 23-6-2009 - S/Shri T.K. Jayaraman, M.V. Ravindran, JJ. REPRESENTED BY : Shri Vardarajan, Advocate, for the Appellant. Shri VPC Rao, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. All these appeals have been filed against OIO No. 5/2005 dt. 31-8-2005 passed by the Commissioner of Central Excise and Customs, Calicut. The details of the impugned order are given in the following tabular column. Sl. No. Appeal No Party s name Duty demanded Penalty 1. E/1076/05 M/s. Southern Ispat Ltd. Rs. 88,57,200/- Rs. 88,57,200/- 2. E/1077/05 Mrs. Anas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal as mentioned supra. (3) Revenue relied on the statements of two drivers who had allegedly, stated that they had regularly transported ingots to two factories manufacturing rods. The said statements cannot be relied on since the Department had conducted an inquiry with M/s. Lal Steel Pvt. Ltd. and M/s. Palghat Steels. In the Order-in-Original itself the Commissioner records the facts that on cross-checking the records of the other units, it was found that there was no record of entry of the said vehicle in their factory weighment receipt books. This proves that the statement of the two drivers cannot be relied on. (4) In fact based on the above evidence of supply of materials to the other two companies, investigations were carried out on the same set of facts like high consumption of electricity, obtaining of raw materials without counting etc. show cause notices were issued to them. But the proceedings against M/s. Palghat Steels Ltd. have been dropped by the Jt. Commissioner vide OIO No. 5/2004 dt. 20-4-2004. Hence, the allegation that the materials were supplied clandestinely to M/s. Palghat Steels stands dismissed. Similarly with regard to supply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. The correspondences between the appellant and the KSEB were cited. (9) With regard to the comparison of electricity consumed during the period April, 1999 to March, 2000 and April, 2000 to July, 2001, it was explained that from April, 2000 onwards the appellant got power of 47.5 HG in the place of 50 HG and only 8500 volts in place of 11,000 volts. The auxiliaries like blower pollution devises, shearing machines and bundling machines started working resulting in more power consumption. The quality of scrap also determines power consumption. (10) Reliance was placed on the following decisions to urge that duty cannot be demanded merely on excess power consumption. (a) Hansi Castings Pvt. Ltd. v. CCE, Kanpur - 1998 (102) E.L.T. 139. (b) Parasuram Cements Pvt. Ltd. - 2003 (160) E.L.T. 213. (c) CCE, Bhuvaneshwar v. Meenakshi Steels - 2006 (190) E.L.T. 395. (d) CCE, Calicut v. Koyenco Bazar - 2007 (208) E.L.T. 356 (Tri. - Bang.) = 2007 (78) RLT 148. (e) Electronic Control Corporation - 2006 (197) E.L.T. 297. (11) Except for higher consumption of power, no corroborative evidence has been produced. The burden to prove clandestine removal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced during the stock taking, proceedings were initiated against the appellants but they had been set aside by this Bench s final order 1608/2005 dt. 5-9-2005, as the shortage/excess were based only on high estimate. As regards the voltage fluctuations, the correspondence between the appellant and the KSEB indicates that there has indeed been a voltage fluctuation resulting in abnormal consumption of electricity. It is also seen that two drivers had given statements against the appellant relating to transportation of goods to M/s. Palakkad Steel P. Ltd. and M/s. Lal Steel. It is seen that the lower authorities had already decided the issue in favour of the two assessees with regard to the same set of facts and allegations. In the light of this development, the statements of the drivers do not have any evidentiary value. It is further seen that according to the Department, the yield from scrap should be 84.311% as against what is obtained by the appellant at 82.2%. The Department has calculated the alleged excess production purely on a theoretical basis like for every 850 units, there should be one ton of production. Based on this, the clandestine clearance has been estimated. In fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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