TMI Blog2015 (8) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the actual power consumption nor there is any evidence of unaccounted purchase of MS scrap or evidence of clandestine clearance of the finished goods. The only evidence of clandestine clearance of finished goods is in the form of seized documents including computer printouts and shortage of finished goods and duty involved in respect of demand ₹ 1,40,93,563/- based on the same has already been paid. Out of total duty demand of ₹ 11,36,37,891/- while duty demand of ₹ 1,40,93,563/- appears to be sustainable, the balance duty demand ₹ 9,89,44,328/- does not appear to be sustainable. Accordingly, we hold that the amount of ₹ 1,40,93,563/- already paid by the appellant is sufficient for hearing of these appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the printouts of the computer during the month of August, 2011, it was found that there was clearance of bars involving duty ₹ 15,46,849/- which was not accounted for in the RG-1 register and no invoices had been issued. From the guest house, some documents regarding clearances during April, May and June, 2011 were recovered and on the basis of value of clandestine removal of the goods, the total duty involved was ₹ 1,10,25,351/-. Similarly, from the factory premises certain documents were recovered which indicated clandestine removal during the month of March, 11, the total duty involved in respect of which is ₹ 10,49,669/-. The total duty involved on the quantity of finished goods found short, and duty involved in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 11,36,37,891/- against the appellant alongwith interest and besides this while imposed penalty of equal amount on the appellant company under section 11AC and imposed penalty under Rule 26 of Central Excise Rules, 1944 on the other co-noticees. Against this order of the Commissioner, these appeals have been filed alongwith stay applications. 2. Heard both sides in respect of stay applications. 3. Shri Bipin Garg, Advocate, the learned Counsel for the appellant pleaded that out of total duty demand of ₹ 11,36,37,891/-, the duty demand of ₹ 47,71,695/- is in respect of shortage of the finished goods detected at the time of stock taking on 21.9,11, that the duty demand of ₹ 1,10,25,351/- and ₹ 10,49,669/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for this ratio of power consumption of 669.83 units per MT TMT bar/MS bar, there is no evidence of purchase of unaccounted raw material or evidence of clandestine removal in respect of duty evasion of ₹ 9,89,44,328/-, that in view of this, the duty demand of ₹ 9,89,44,328/- which has been confirmed based on assumption that for production of one MT of TMT bar/MS bar power consumption of 669.83 units of electricity is required is not sustainable and in respect of this portion of this duty, the appellant have strong prima facie in their favour; that in view of this, the amount of ₹ 1,40,93,563/- paid by the appellant company is sufficient for hearing of the appeals and hence the requirement of pre-deposit of balance of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these months as recorded in the RG-1 register to the quantity of bars alleged to have been cleared clandestinely during these months as per seized documents by assuming the clandestine clearances during this period to be the production of this period. In our view, this assumption of the department is not correct, as the quantity alleged to have cleared during a particular month based on certain seized documents may not have been manufactured during that month and therefore for the purpose determining power consumption for production of one MT TMT bar/MS bar, this quantity cannot be treated as the quantity produced during that month. Moreover, neither any experiment has been conducted for ascertaining the actual power consumption nor there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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