TMI Blog2011 (3) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the period August 2000 to March 2005 was confirmed based on show-cause notice dated 5.9.05 proposing demand of ₹ 86,46,279/-. There is also demand of interest besides imposition of penalty of ₹ 8,45,247/-. This proceeding has been initiated consequent to the visit of the audit team to the appellants unit during the period 3.12.2002 to 5.12.2002. 1.3 Ex.Appeal No.49/09 is against the demand of ₹ 33,66,46,078/- relating to the period March 2002 to April 2007 along with interest and penalty of an equal amount imposed by the Order-in-Original No.26/MP/Commr./2008 dated 31.10.2008 which decided the show-cause notice dated 7.6.07 issued consequent to Audit visit. 1.4 Ex.Appeal No.325/09 is against the demand of duty of ₹ 4,20,42,698/- relating to the period May 2007 to June, 2008 along with interest and imposition of penalty of an equal amount imposed by the Order-in-Original No.04-05/MP/Commr./2009 dated 25.2.2009 which decided show-cause notices dated 23.5.08 dated --.9.08 This proceeding was also in pursuance to the visit by the Audit team. 1.5 All these appeals involve a common issue alleging suppression of production and clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. (b) Statements of the Representative of the appellants were recorded and referred to in the show-cause notice and the same were not furnished to them. The Commissioner has relied upon these statements without giving an opportunity to the appellants by providing copies of the same. (c) The demand has been made merely based on presumption. The wastage of corks takes place under different circumstances during manufacture and during subsequent stages. There is no unusual excess shortage. In this regard, he relies on the statements of re-conciliation filed along with the replies which are relating to the period 1999-2000 to 2003-2004. The statements have been presented productwise i.e. separately in respect of Coca Cola, Fanta, Sprite, Thumps up, Limca and Kinley Soda which have not appreciated by the Commissioner. (d) The appellants have furnished all relevant details in the periodical returns and there was no suppression of any relevant materials and therefore, extended period can not be invoked for demanding duty. 4.2 The ld. Advocate also contested the demand by denying the credit on crates. He submits that the crates are to be treated as packing materials and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring personal hearing before the Commissioner, but the Commissioner has chosen to record that the original has not been produced for verification. After the personal hearing, the Commissioner has deputed a team of officers on several occasions for verification of electricity bills monthwise and in spite of co-operation extended by the appellants, the Commissioner has recorded that the said document was not produced before the authorities. 6.2 Even otherwise merely based on electricity consumption, no demand can be made on presumption of excess production and alleging clandestine removal of such excess production in the absence of other evidence corroborating the allegation. 6.3 The Commissioner has not appreciated the fact that more than 20 Crores bottles of 200 ml verities were manufactured and cleared by the appellants during the disputed period and has chosen to treat the entire aggregate production of about 28 Crores bottles as 300 ml bottles. Though a specific submission was made in this regard, the Commissioner has not dealt with the same. 6.4 The production of aerated bottles have to be viewed not merely taking into account the electricity supplied by the Electrici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same before the Commissioner during personal hearing is false as seen from the records. Even in their letter dated 1.10.2008 submitted after the personal hearing, no such claim of submitting the original to the Commissioner during personal hearing has not been made. He also draws our attention to the specific finding of the Commissioner that the appellants have failed to produce evidence regarding use of generator during the relevant period. 7.3 He also submits that no specific submissions have been made regarding the Commissioner not taking into account 20 Crore bottles of 200 ml variety, whereas the order-in-original clearly records that the demand related to 300 ml bottles variety based on cork issued for the said variety only. 7.4 He also submits that the quantity of crown corks which are claimed to have been wasted is a huge quantity and they are of substantial value and the appellants have not claimed that they have sold such quantity of crown cork which have wasted. 7.5 Drawing our attention to the re-conciliation statement of cork for the year 1999-2000 relied upon by the ld. Advocate, he submits that in respect of at least two varieties, namely, Thumps Up and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cost of crates in the value of aerated water bottles, has to be viewed in the context of specific provision of Section 4 which excludes the cost of durable and returnable containers. 8.1 We have carefully considered the submissions made from both sides and perused the case records. The manufacture of aerated water bottles requires several ingredients, like water, sugar, carbon-di-oxide gas, concentrate and bottles etc. We find that the audit team had visited the unit during December, 2002. It is seen that two different objections have been raised. One objection related to mis-match between production recorded and the quantity of concentrate used and the other objection related to consumption of power vis-`-vis production recorded. It is not known why the department chose to issue show-cause notices based on each of these two parameters separately when undisputedly concentrate and electricity are common production factors in respect of aerated bottles. 8.2 We also find that the preventive department has embarked on investigation in May, 2003 focussing on only one factor of production, namely, crown cork apparently not aware of the audit objections based on other factors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply by producing extracts from RG I and the monthly returns. We find that neither the show-cause notice nor the reply to the show-cause notice nor the order-in-original is in a position to help us to decide these facts on issue. 8.7 Further, demand has been made taking the electricity consumption for the month of November, 2002 as 45910 units whereas the appellants are claiming the same to be 76729 units. The claims were being made that the bills were produced before the Commissioner and also subsequently to the teams of officers. This claim is contradicted by the Department. The Commissioner could have called for this or alternatively the appellants could have come forward to produce the same before the Commissioner. We feel sad to comment any further on this issue. During hearing, the original electricity bill was produced for our perusal. We deem it appropriate that an opportunity should be given for producing the original before the Commissioner. Under these circumstances, we deem it appropriate that an opportunity to the appellants should be given to produce the original before the Commissioner. We also find wide variation between the quantity of electricity referred mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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