TMI Blog2014 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships, while directing pre-deposit followed the judgment of Hon’ble Supreme Court in Bhagwati Ispat Pvt. Ltd.’s case(2006 (11) TMI 222 - SUPREME COURT OF INDIA). Even though the Applicants have all along been disputing the basis of consumption of electricity for confirmation of the demand, but could not bring out any materials on record, justifying the high consumption of electricity, which varied significantly. Appellant directed to make pre-deposit of 25% of duty confirmed - stay granted partly. - Appeal Nos.E/A/435,450,451,470,494,569/2010 & 845,848, 884/2011 - ORDER NO.SO/71442-71450/2013 - Dated:- 12-12-2013 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. FOR THE APPELLANT : SHRI B.N.CHATTOPADHYAY, CONSULTANT FOR THE RESPONDENT : SHRI D.K.ACHARYYA, SPECIAL COUNSEL JUDGEMENT Per Dr. D.M. Misra: Heard both sides. 2. The following Applications are filed seeking waiver of pre-deposit of duty and penalty shown against each of the Appeals as below : APPEAL NO. NAME OF APPLICANT DUTY CONFIRMED Rs. PENALTY IMPOSED Rs. E/S/498/10(E/A/435/10) BHARAT INGOT STEEL CO.(P) LTD. 12,50,33,022/- 12,50,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Tribunal in a series of cases and approved in appeals by the Hon ble Supreme Court. He has vehemently argued that in all the aforementioned Appeals, Dr. N.K. Batra s report, on consumption of electricity, has been the only basis and evidence for determination of duty liability. The Ld. Consultant submitted that the Tribunal in the case of R.A.Castings Pvt. Ltd. Vs. Commissioner of Central Excise,Meerut-I, 2009 (237) ELT 674(Tri.-Del.), considering the said Dr. N.K. Batra s Report along with other reports of various authorities, held that in absence of corroborative tangible evidences, solely on the basis of consumption of electricity, demand of duty cannot be sustained. The said decision has been upheld by the Hon ble Allahabad High Court, reported as Commissioner of C.Ex., Meerut-I Vs. R.A. Castings Ltd., 2011 (269) ELT 337(All.) and the SLP against the same was dismissed by Hon ble Supreme Court. It is his submission that the principle of law laid down in the R.A. Castings case(supra), thus, has attained finality and ought to be followed in deciding questions of similar nature. 4.2. Referring to and distinguishing the judgment of Hon ble Bombay High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture and clearance of MS ingots by the applicants, is in consonance with the observation of the Tribunal in the case of Bhagwati Ispat Pvt. Ltd. Vs. CCE,Bhopal 2006-TIOL-350-CESTAT-Del., and later, approved by Hon ble Supreme Court on an SLP filed by the assessee, reported as Bhagwati Ispat Pvt. Ltd. vs. CCE 2007 (211) ELT 21 (SC), by confirming the pre-deposit directed by the Tribunal. Similar view has also been taken by the Tribunal in Nagpal Steel Ltd. Vs. CCE, Chandigarh, 2000 (125) ELT 1147(T). The ld. Spl. Counsel further submitted that in Bhagwati Ispat Pvt. Ltd. s case, the average consumption of electricity @ 941 units per MT of MS Ingots, has been accepted as the basis for determination of the actual production and hence applying the Technical Expert, Dr. Batra s opinion in the present case, adoption of the consumption of electricity @1000 units for manufacture of 1 MT of M.S Ingots, is not excessive or absurd. It is his submission that in the clandestine removal cases, all other data relating to production and manufacture of goods, could be amenable to manipulation, but the data on consumption of electricity, being recorded by the respective Electricity Boards, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 (28) STR 225 (Raj.), pre-deposit be directed from the Applicants. 6. We find that in all these cases, demands have been confirmed alleging excess production and removal of excisable goods clandestinely, without payment of duty. The Applicants challenged the Orders on the ground that in view of the principle laid down in RA Castings case (supra), only on the basis of consumption of electricity, reliance upon the opinion of the Technical Expert, Dr. N.K. Batra, in confirming demand, without any corroboration, is bad in law. On the other hand, the Revenue argues that in the case of clandestine removal, other evidences being amenable to manipulation, consumption of electricity, which is a reliable piece of evidence, being maintained by the respective Electricity Boards, could safely be adopted as the basis for demand. In support, they have placed reliance on the judgments of the Tribunal in Bhagawati Steel Pvt. Ltd. s case and M/s. Nagpal Petrochemicals case(supra). We have carefully considered the judgments. We find that the RA Castings case(supra) was delivered in disposing of appeals, whereas Bhagawati Steel Industries case was in the context of disposal of the Waiver Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase invoices which were utilised to clear finished excisable goods under the pretext of these being traded goods. 12. On this state of the material and reading the order of the Tribunal, it cannot be held that the Tribunal has either considered irrelevant material or has failed to consider relevant material. During the course of its judgment, the Tribunal has furnished reasons for not following its order in an earlier decision in R.A. Castings in paragraph 17 of its order. Similarly, the Tribunal observed that the order of the Supreme Court in the case of BhagwatiIspatPvt. Ltd. v. C.E.E., Bhopal (supra) was not brought to its notice when it passed an earlier order on 9 July, 2010 in the case of Nasik Strips. In the case of BhagwatiIspat the Tribunal had directed the appellant to pre-deposit fifty per cent of the duty demanded in appeal. The Supreme Court in its decision in BhagwatiIspatPvt. Ltd. v. C.E.E., Bhopal (supra) directed a deposit of 1/5th of the total duty demanded. In another case relating to clandestine removal in Everest Rolling Mills (P) Ltd. v. C.C.E., Jaipur-I, 2009 (244) E.L.T. 91 the Tribunal had directed a deposit of 1/3rd of the duty demanded tog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces/observation of the Tribunal in Shridhar Castings case(supra). However, the Hon ble High Court, after taking note of the amount directed by the Hon ble Supreme Court in Bhagwati Ispat Pvt. Ltd. s case(supra), reduced the pre-deposit of duty from 50% to 25% and waived entire amount penalty imposed on the applicants. Reading the said judgment and keeping in mind the facts and circumstances elaborated in Shridhar Castings case(supra), we directed the Revenue to file the evidences/findings in a tabular form with a copy to the other side. On the next date of hearing, on a specific query from Bench about the correctness of figures/data mentioned in the chart/table filed by the Revenue, the Ld. Consultant for the Applicants had sought time for verification and their reply/explanation. Subsequently, though they had not disputed the figures/data in the said chart but submitted their detailed explanation/reply on the conclusion arrived by the department. Prima facie, we find that more or less, similar evidence/circumstances, as referred to in Shridhar Casting s case(supra) have been brought out on record by the Revenue against the Applicants in the present set of Appeals. The ld. Consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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