TMI Blog2016 (4) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... s been quoted by the Revenue to indicate that such Mill Scale Scrap / loss has invariably to be in the range of 1 to 3 %. This has been discussed by the first appellate authority. In the absence of any such evidence contrary to the claim of the appellant Mill Scale Scrap generated during job work can not be held as an evidence of clandestine manufacture & clearance of M.S. Bars. The same can also not be considered as sufficient evidence to demand differential duty from the Respondent. As per the above observation and by relying upon the decision of this bench in the case of CCE Calcutta-II Vs. Murttiwyn Industrial corp. [1995 (5) TMI 152 - CEGAT, CALCUTTA], a charge of clandestine removal can not be said to be established merely on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenues case is squarely covered by the Apex Courts judgment in the case of CC Madras others Vs. D. Bhoormul [1983 (13) ELT 1546 (S.C.) in as much as department is not required to prove its case with mathematical precision. 3. Sh. Saurabh Bagaria (Advocate) Sh. Partha Banarjee (Advocate) appeared on behalf of the Respondent. Sh. S. Bagaria (Advocate) during the course of hearing written submissions argued that department is not able to give any scientific authority as to how Mill Scale Scrap / burning loss should always be in the range of 1 to 3 %. That by a letter dt 17/2/2009 Project Management cell of Ministry of Steel GOI, New Delhi; written to one of the Job worker M/s. Akshaya Roll (P) Ltd, job worker was advised to use pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, is not applicable on facts law because in that case department had discharged initial onus of clandestine activity. That in the present case demand is purely on an assumption that Mill Scrap / loss has to be in the range of 1 to 3% without any evidence. 4. Heard both sides perused the case records. The issue involved in the present proceeding is whether the Mill Scale Scrap / burning losses, claimed by the Respondent with respect to conversion of M. S. Ingots to M.S. bars got done from the job workers, is correct or the same should be in the range of 1 to 3%. It is observed from the case records, that much before the issue of show cause notice date 2/5/11, one of the job workers of the appellant got a letter dt 17/2/2009 from Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal filed by the Revenue, following observations were made by this bench in Para-9:- 9. The appeal does not succeed, however, on the other grounds. The Assistant Collector has observed in his order that the burning losses vary from 5 to 8% and in some cases, can go upto 10% whereas in the present case such losses were almost uniformly 10%. He had allowed 5% losses and demanded duty on the losses in excess thereof. He has also observed that the losses should be of varying levels and not uniform as reported by them. There is no basis for such a finding. The loss due to burning in the manufacturing process will depend upon various factors like the material used product made, the process, power supply including breakdown etc. mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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