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TMI Blog2012 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 - Dated:- 24-5-2012 - Shri S.K. Gaule, Dr. D.M. Misra, JJ. REPRESENTED BY : Dr. Samir Chakraborty, Advocate, for the Appellant. Shri S. Misra, Addl. Commissioner (AR), for the Respondent. [Order per : S.K. Gaule, Member (T)]. Heard both sides. The appellant filed this appeal against the Order-in-Original No. 22/MP/Ayukt/2009, dated 30-9-2009, whereby the ld. Commissioner has confirmed demand of duty of Rs. 4,84,13,471/- along with interest and imposed penalty of an equal amount under Section 11AC of the Central Excise Act, 1944. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of non-alcoholic aerated water. During the course of verification of ER-1 and ER-6 returns for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 700 (Tribunal), has decided this issue in favour of the assessee. The above decision was affirmed by the Hon ble High Court of Bombay in Central Excise Appeal No. 53 of 2007 dated, 10th January, 2008. In support of his contention, the ld. Advocate for the appellant also placed reliance on the Tribunal s decision in the case of Pepsico India Holdings Ltd. v. Commissioner of Central Excise, Mumbai-II reported in 2000 (117) E.L.T. 659 (Tribunal), which was also affirmed by the Hon ble High Court of Bombay in the case of Commissioner v. Pepsico India Holding Ltd. - 2008 (232) E.L.T. A197 (Bom.). The ld. Advocate for the appellants also relied upon the decision of the Tribunal in the case of Suzlon Fibres Ltd. v. Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (J172) (S.C.) to hold that allegations of clandestine production and removal based on calculations of raw material fed into the process or on working of the machinery as noticed during test inspection cannot be upheld in the absence of any tangible evidence on record. The Supreme Court specifically noted that the average production cannot be made the basis for issuance of show-cause notice. In the instant case, it has come on record that the respondents themselves had fixed norms of production for their units. The Tribunal also considered in its common order in the case of Pepsico India Holdings Ltd. v. Commissioner of Central Excise, Mumbai-II, 2000 (177) E.L.T. 659. The question that we are called upon to answer is whether question (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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