TMI Blog2015 (9) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... ling mill is manual. Moreover, no experiment has been conducted by the department to ascertain as to whether the roiling mills of the respondent is comparable with the rolling mills of M/s.SSSRM in terms of technology and production. Besides this, we also find that that National Institute of Secondary Steel Technology, established by the Ministry of Steel, Govt. of India conducted a study and submitted a technical report on performance, and energy consumption of re-rolling mills, where electricity consumption was arrived at 215 units per MT and Government of Rajasthan in the notification issued under compounded levy scheme for charging sales tax from rolling mills has mentioned power consumption of the medium size rolling mill as 225 units per MT. In view of this, there is absolutely no justification for adopting power consumption norm of 102.09 units per MT of M/s.SSSRM in respect of the respondent. Rule 173E provided for determination of normal production by a manufacturing unit and that could be adopted as basis for allegation of duty evasion, in case his actual production drastically varied from the normal production. But in this case, no experiment has been conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The duty demand against the respondent is on the basis of electricity consumption. In this regard, the investigating officers in respect of another rolling mills M/s.Shree Sharma Steel Rolling Mills Pvt.Ltd., Jhotwara (hereinafter referred to as SSSRM) determined its power consumption in respect of rolled products as 102.09 units per MT. Adopting this ratio to the respondent unit, the investigating officers estimated their production of rolled product during the period December, 03 to September, 06 by dividing total power consumption by 102,09, On this basis, their production was estimated as 22089.51 MT whereas the assessee had recorded only 9737.57 MT of the finished goods in their production accounts during the same period. On the basis of estimated production determined in this manner, the duty of ₹ 3,71,24,264/- has been demanded on the alleged clandestine removal of rolled products. The matter was adjudicated by the Commissioner vide Order-in-Original dated 28.12.12 by which the Commissioner dropped the proceedings against the respondent. 1.3 The above order of the Commissioner was reviewed by the Committee of Chief Commissioners and the Committee of Chief Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s during the period from August, 05 to October, 05 is based only on the entries of ledger book account of NIPL, that these documents recovered from a third party cannot be used against the respondent without permitting the cross examination to the respondent; that though M/s.NIPL had gone to settlement commission and accepted certain tax evasion, this cannot be treated admission of tax evasion on the part of the respondent, that in this regard, he relies on the judgement of the Tribunal in the case of Bosch Chassis Systems India Ltd. Vs. CCE, Delhi-III-2008 (232) ELT 622 (Tri.-LB), that the power consumption of M/s.SSSRM cannot be applied to the unit of the respondent as rolling mills of M/s.SSSRM is automatic roiling mills while the respondent's rolling mill is manual, there is big difference in the efficiency of two rolling mills; that as discussed by the Commissioner in para 54 of his order, National Institute of Secondary Steel Technology, established by the Ministry of Steel, Govt. of India conducted a study and submitted a technical report on performance and energy consumption of re-rolling mills, where electricity consumption was arrived at 215 units per MT, while averag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e details relating to supply of MS Ingots to the respondent unit during the period August, 05 to October, 05, it is seen that other than the entries in the private ledger book of M/s.NIPL and the statement of the concerned person of NIPL, there is no evidence in support of the department's allegation that during the above mentioned period, the respondent received 60.46 MT of MS Ingots from NIPL without any invoices. It is well settled law that on the basis of records recovered from a third party, the allegation of duty evasion cannot be made against an assessee unless cross examination of the persons from whom possession the records had been recovered, has been allowed, which has not been done in this case. Moreover, just because, M/s.NIPL had filed application before the settlement commission and had admitted certain quantum of duty evasion, it cannot be treated as an admission of receipt of unaccounted MS ingots by the respondent, and in this regard, we are supported by the decision of the larger bench of the Tribunal in the case of Bosch Chassis Systems India Ltd. Vs. CCE, Delhi-III-2008 (232) ELT 622 (Tri.-LB). Therefore, merely on the basis of entries in the ledger book re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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