TMI Blog2015 (12) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat credit demand of ₹ 5,50,50,489/- and hence in respect of this Cenvat credit demand unconditional stay has to be granted. Appellant had given the reasons for this fluctuation and according to them this fluctuation is due to power break down or fluctuation in electric voltage resulting in breakdown of manufacturing process resulting in cooling of furnace which requires more consumption of power for re-heating. Prima facie, we find that these factors have not been considered and the Commissioner has arbitrarily adopted the power consumption figure of 346 units per MT as the norm for the entire period. In our prima facie view estimating production on this basis would not be correct when there is absolutely no evidence of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t during the period of dispute their power consumption had varied from 346 units per MT to 935 units per MT and according to the Department, their correct power consumption norm is 346 units per MT. The Department accordingly has divided the power consumption during period from 2005-2006, 2006-2007 and 2007-2008 by 346 and on this basis has estimated production of copper rods and after excluding the production recorded in the RG-1 register the duty has been demanded on the balance amount quantity. The duty demand of ₹ 32,06,93,486/- is on this basis. The matter was adjudicated by the Commissioner vide order-in-original dated 06/3/13 by which he confirmed the above-mentioned Cenvat credit demand and duty demand against the appellant al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Jammu vide order-in-original dated 16/11/12 had confirmed the above-mentioned duty demand against M/s V.K. Metal alongwith interest and had imposed penalty on them, that in respect of the appeal filed against the Commissioners order dated 16/11/12 before the Tribunal alongwith stay application, the Tribunal vide stay order No. 50836-50839/2015 - EX (BR) dated 05/2/15 has waived the requirement of pre-deposit of duty demand, interest and penalty by M/s V.K. Metal for hearing of their appeals and stayed its recovery taking prima facie view that the allegation against M/s V.K. Metal of issuing bogus invoices without any manufacturing activities is not sustainable, that in view of this stay order of the Tribunal, the requirement of pre-depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Apex Court vide judgment reported in 2011 (269) E.L.T. A108 (S.C.), that same view has been taken by the Tribunal in the cases of CCE, Jaipur vs. Venus Alloys Pvt. Ltd. reported in 2012 - TIOL - 2016 - CESTAT - Del. and also in the case of SRJ Peety Steels Pvt. Ltd. Ors. vs. CCE, Aurangabad reported in 2014 - TIOL - 582 - CESTAT - MUM and 2014 - 1530 - CESTAT - MUM, that in view of this, the duty demand of ₹ 32,06,93,486/- confirmed against the appellant on the basis of power consumption norm of 346 units per MT of rolled products is not sustainable and in respect of this demand also the appellant have strong prima facie case in their favour and that in view of the above submissions, the requirement of pre-deposit of Cenvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this allegation is based on RTOs report, that the vehicle numbers in respect of which the RTO s report was obtained by the Department were wrong, that the vehicle actually used, as mentioned in the invoice is JK 02U 7302, which is a truck, while the Department has obtained RTO s report in respect of the registration No. JK 02 7302, that similarly the correct vehicle number mentioned in some other invoices is JK 02F 9771, which is a truck while the Department has obtained RTOs report in respect of the registration No. not JK 02E 9871, that similarly there is no vehicle with registration No. JK 02 7302 while the vehicle number mentioned in the invoices is JK 02 U 7302, and the Department has wrongly obtained RTOs report in respect of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed allegation against them by issuing bogus invoices for copper ingots without manufacturing any activity prima facie is not sustainable. In that case, the question as to whether M/s Kanpur Kashmir Roadways exists or not has also been considered. In view of this, the appellant have prima facie case in respect of the Cenvat credit demand of ₹ 5,50,50,489/- and hence in respect of this Cenvat credit demand unconditional stay has to be granted. 7. As regards the duty demand of ₹ 32,06,93,486/-, we find that the same is based only on the assumption that for production of one copper rods 346 electricity has been consumed, and this view has been taken on the basis that during the period of dispute, the power consumption has varied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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