9911796707
TMI Blog2006 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... . The above allegations were based upon the verifications conducted by the visiting Central Excise officers on 7.10.2004 and the statements of various official recorded during the course of investigation. As a result of such investigation and verification of the record, it was alleged that the yield of their final product recorded in the statutory records is less than the input output norms, when compared with the quantifies of concentrate, sugar, C02 gas and crown corks. The additional production, alleged to have been removed by the appellant without payment of duty has been computed by applying conversion formula of concentrate in the standard norms at 100% yield in respect of each brand of product. 3. While contesting the above allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.63% to 9.61% for the period involved. As such, he has concluded that the shortfall in production is explained by partial recording of production and clearance without payment of duty. 5. He has also considered the appellants contention that in the absence of any corroborative evidence as regards clandestine manufacture of clearance any goods, calculation based upon 98.5% yield on concentrate issue for production, based on mere theoretical calculation cannot be taken against them. The Commissioner has observed that the onus to account for this shortfall shifts to the party as matter is within their special knowledge, and inasmuch as party has not been able to discharge this onus and has not explained the shortfall, it has to be held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous stages of production, over which they do not have any control. Hon'ble Supreme Court in the case of Oudh Sugar Mills Ltd. Vs. Union of India, 1978 (2) E.L.T. (J172) (S.C.) has held that allegations of clandestine production and removal based only 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. Similarly, we find that the Tribunal in the case of Pepsico India Holdings Ltd. Vs. Commissioner of Central Excise, Mumbai-II, 2000 (177) ELT 659 (Tribunal) has observed that recovery of short levy sought on the ground that the soft drink concentrate should have produced the larger quantity of aerate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, cannot he made the basis for confirmation of demand of duty. If there is shortfall in production, Revenue cannot confirm demand of duty in respect of goods not produced by the assessee. There is no other evidence on record showing that the appellants have cleared the said goods clandestinely. The entire case of the Revenue is based only on inferences involving unwarranted assumptions and cannot be upheld. 11. At this stage, we also note that an identical allegation were made in respect of another unit of the same appellant situated at Pune. The Commissioner Central Excise, Pune vide his Order-in-Original No.36/CES/ 2001 dt. 18.12.2001 has vacated the notice, after taking into account the various factors like loss and wastage occurring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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