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TMI Blog2017 (3) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed on the appellant M/s. Nirmal Inductomelt Pvt. Ltd. Besides, penalty of Rs. 40,00,000/- was imposed on Shri.Bharat Bhushan Malik, Director of the appellant company. 2. Brief facts of the case, leading to this appeal, are as follows:- 2.1 The appellant is engaged in the manufacture of M.S. Ingots falling under Chapter 72 of the Central Excise Tariff Act, 1985. The Central Excise Officers visited the factory of the appellant on 03.10.2005 and during the course of enquiry, found certain documents relating to production of M.S. Ingots for the period 02.08.2005 to 01.10.2005, which contained the details of date-wise and heat-wise production of M.S. Ingots. On examination of the monthly electricity bills, it was detected that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the months of August and September, 2005 recovered from the appellant, the SCN has alleged that the average consumption of electricity was 689 units per MT. Accordingly, for the period from May, 2004 to July, 2005; production of M.S. Ingots was worked out to 21,294.694 MT. Since the appellant had recorded production of 12,122.060 MT during the relevant period, the SCN has concluded that that 10,424.608 MT of M.S. Ingots were removed by the appellant clandestinely. 3. The show cause notice dated 11.12.2006 was adjudicated vide the impugned order dated 30.04.2007 by confirming the duty demand, inter alia, on the ground that average consumption of electricity as reflected in the private records for the period August to September, 2005 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whom the finished goods were allegedly removed clandestinely etc., the adjudged demand cannot be sustained being confirmed on the basis of assumptions and presumptions only. The ld. Advocate has relied on the judgement of Hon'ble Supreme Court in the case of State of Kerala vs. C.Velukutty (1966) 17 S.T.C. 465 (S.C.) and also the decisions of this Tribunal in the case of R.A. Castings Pvt. Ltd. vs. CCE, Meerut- 2009 (237) E.L.T. 674 (Tri.-Del.) and SRJ Peety Steels Pvt. Ltd. & Ors. Vs. CCE - 2014 -TIOL -582 - CESTAT - Mumbai & 2014 - TIOL- 1530 - CESTAT - Mum. to state that charges of clandestine removal cannot be sustained without the help of positive evidence and electricity consumption cannot be the sole criteria for confirmation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther and even from one heat to another within the same date. It has also been held that no tax can be levied on the basis of estimation and that the fact of manufacture is to be proved beyond doubt. Further, it is a settled principle of law that clandestine manufacture and removal of excisable goods is to be proved by tangible, direct, affirmative and incontrovertible evidence, which in the present case has not been provided or referred to by the Department. 8. In the light of above discussions, we hold that the demand of duty is not sustainable on merits and accordingly, the impugned order is set aside. Since the demand itself is not sustainable, the question of imposition of penalty on the appellant company and on its Director does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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