TMI Blog2016 (8) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... s without payment of duty. Clandestine removal being a positive act, the burden of proving the same is on the Revenue and cannot be discharged on the basis of conjectures and assumptions. The appellant is also the beneficiary of the North East exemption vide Notification No.32/99-CE and it defies logic as to why appellant will indulge in clandestine manufacture and removal when they are entitled to cash refund of the duty paid through PLA. There is nothing on record to indicate that the appellant assessee had infact manufactured the final products out of the inputs on the basis of input-output ratio. As such, in the light of various decisions relied upon by the appellant, and in the absence of any concrete evidence of clandestine manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel submits that the Adjudicating Authority has relied on the report of Department of Scientific and Industrial Research (DSIR), downloaded from their website, and framed charges of suppression of production and clandestine removal without adducing any corroborative evidences. Further, the DSIR report is based on the study of technology used in arc furnace and the average yield has been taken accordingly whereas, the appellant s unit is having induction furnace which does not have any fixed percentage of recovery. The report of DSIR collected from their website, mentions average yield and not the actural yield. Therefore, the study report does not have any evidential value and relying upon the same is against the principles of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued on 29.12.2011 by invoking the extended period under provisions to Section 11A(1) of the Central Excise Act 1944 for the period 2007-08, 2008-09 and 2009-10. There was no suppression of fact regarding production, clearance and value of the goods. That all the facts have been reported in the monthly statutory reports to the Central Excise authority, from time to time, in the manner prescribed by the Department, which has not been disputed; That Appellant is the beneficiary of the North East exemption Notification No. 32/99-CE. Since duty exemption by way of refund is availed, there could be no reason for resorting to evasion. Payment of duty by the appellant is revenue neutral to the Department, as the amount of duty paid is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppressed the production records and resorted to clandestine removal of the manufactured goods without payment of duty. For resorting to clandestine removal, no records of the suppressed production were maintained for obvious reason. Records whatsoever maintained were also manipulated. Fact of manipulation of production records and suppression of production has been testified by the manager of the appellant while subscribing statement under sec. 14 of the Central Excise Act, 1944. In absence of authentic production records, it is difficult to figure out the exact quantum of evasion of duty perpetuated the appellant and simultaneously they cannot be let off. Bench mark of input-out norms are therefore, taken from the Report of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax Appellate Tribunal, New Delhi. The Tribunal observed that it is settled principle of law that the electricity consumption can not be the only factor or basis for determining the duty liability, that too on imaginary basis, especially when Rules 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption of various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. The Tribunal further observed that no experiment have been conducted in the factories of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e act of clandestine production and removal. We also find that there was no proper stock taking and there is no evidence showing the manufacture of the goods and their clearances without payment of duty. Clandestine removal being a positive act, the burden of proving the same is on the Revenue and cannot be discharged on the basis of conjectures and assumptions. The appellant is also the beneficiary of the North East exemption vide Notification No.32/99-CE and it defies logic as to why appellant will indulge in clandestine manufacture and removal when they are entitled to cash refund of the duty paid through PLA. 4.5. In view of the above observations and settled proposition of law, there is nothing on record to indicate that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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