TMI Blog2014 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... disparity in consumption of electricity can be a sole factor in arriving at the conclusion that the person has suppressed the actual production of the final product which attracts the excise duty in absence of any other corroborative evidence - Held that:- The law is well settled that the electricity consumption cannot be the only factor or basis for determining the duty liability that too on imaginary basis especially when Rule 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption or various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. Therefore, there can be no generalzation nor any uniform norm of 1046 units as sought to be adopted by the Revenue especially when there is no norm fixed under Rule 173E till date by the Revenue and notified by it. The electricity consumption varies from one unit to another and from one date to another and even form one heat to another within the same date. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd. Ors; delivered on 10th December, 2008. The proceeding was reconsidered on remand and a duty was imposed upon the petitioner for alleged suppression of the production figures taking into consideration the report submitted by Dr. Batra of IIT Kanpur. The said order is again challenged before the CESTAT and the application for waiver of pre-condition deposit filed therein is disposed of by the impugned order directing the petitioner to deposit 25% of the demand duty which is challenged in this writ petition. The main thrust of the argument before this Court by the petitioner is that the decision is solely based on the report of Dr. Batra of IIT Kanpur which is perverse and liable to be quashed and set aside. It is further submitted that there was another report of the technical expert filed by the petitioner which was not taken note of and the CESTAT wrongly recorded that no other report of a technical expert is available in the proceedings. The petitioner submits that it is a consistent view of the various tribunals that the decisions solely based on the disparity in consumption of electricity is not proper. In support of the aforesaid contentions, the reliance is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon a judgment of the Supreme Court in case of Raj Kumar Shivhare -vs- Asst. Director, Directorate of Enforcement reported in 2010 (253) ELT 3 (S.C.). In reply, the petitioner submits that the existence of alternative remedy is not an absolute bar to entertain the writ petition, if it can be demonstrated that the authority or the tribunal has acted contrary to the clear interpretation and/or pronouncement of the Tribunal or the Court. By placing reliance upon a judgment rendered by me in case of M/s Nicco Corporation -vs- Commissioner of Service Tax Ors. (W.P. No. 15430 (w) of 2013 decided on 03.10.2013), the petitioner says that it has been held that mere existence of an alternative remedy is not a bar in entertaining the writ petition. From the respective submissions, the points evolved for consideration in this writ petition is whether the order seeking dispensation of the deposit of the demand duty can be assailed in a writ jurisdiction; whether the disparity in consumption of electricity can be a sole factor in arriving at the conclusion that the person has suppressed the actual production of the final product which attracts the excise duty in absence of any other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed on the ground of maintainability. The Apex Court held that where the statutory forum is created by law, a writ petition should not be entertained ignoring the statutory dispensation, it would be relevant if Section 35 of FEMA is quoted herein below which reads thus: 35. Appeal to the High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation- In this section High Court means- (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial question of law by suffixing the words of general importance as has been done in many others provisions such as section 109 of the Code or article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172, the phrase substantial question of law as it was employed in the last clause of the then existing section 110 of the Civil Procedure Code (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314; [1962] Supp. 3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, AIR 1951 Mad 969: ILR 1952 Mad 264 [FB] (page 1318) : ..when a question of law is fairly arguable, where there is room for difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. Had it been a case that the legislature intended to provide the right of an appeal against every order passed by the Appellate Tribunal involving question of law which is of wide import, the position would have been different than if the same is qualified with the word substantial which though confers the right of an appeal but in restricted arena. In case of Vijay Kumar Talwar -vs- CIT reported in (2011) 1 SCC 673, the Supreme Court while considering a matter arising from an order passed under Section 260A of the Income Tax Act, 1961 which relates to an appeal before the High Court against an order passed by the Appellate Tribunal if the High Court is satisfied that the case invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that: (Oriental Investment case, AIR p. 856, para 29) 29. inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a mixed question of law and fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable. 67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh, Prativa Devi v. T.V. Krishnan, Satya Gupta v. Brijesh Kumar, Ragavendra Kumar v. Firm Prem Machinery Co., Molar Mal v. Kay Iron Works (P) Ltd., Bharatha Matha v. R. Vijaya Renganathan and Dinesh Kumar v. Yusuf Ali.] On the above noted principle enunciated in the above reports, my answer to the first question framed herein above is an affirmative with the rider that it must involve the substantial question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption or various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. Therefore, there can be no generalzation nor any uniform norm of 1046 units as sought to be adopted by the Revenue especially when there is no norm fixed under Rule 173E till date by the Revenue and notified by it. The electricity consumption varies from one unit to another and from one date to another and even form one heat to another within the same date. There is, therefore, no universal and uniformly acceptable standard of electricity consumption, which can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. 23. The Tribunal has consistently taken the view that wherever electricity consumption alone is adopted as the basis to raise demands, the order of the lower authorities have been held to be unsustainable in law and set aside and the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production of 1 MT of steel ingots, 1046 units electricity required. The Apex Court declined to interfere with the said order as the special writ petition challenging the order of the Allahabad High Court was dismissed. Therefore, mere excess consumption of electricity without any corroborative evidence relating to the purchase of the raw material, conversion of the raw material into a final products and clearance from the manufacturing unit to the respective buyers are produced does not raise presumption of evading the duty. This has been a consistent view of the Tribunal based upon the said R.A. Casting (supra) in dispensing the predeposit condition unless the CESTAT at Delhi in M/s Amrit Versha Ispat -v- CCE, Meerut-I took a different view. The said order was assailed before the Delhi High Court in W.P (C) No. 8141 of 2008 by order dated 19th November, 2008. The division bench of the Delhi High Court set aside the order of the Tribunal and directed reconsideration in the light of the ratio laid down in R.A. Castings Pvt. Ltd.(supra). The show-cause notice issued in the instant case was based on the variation recorded in the consumption of electricity forming the opinion ..... 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