TMI Blog2018 (2) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... held- Mere electricity consumption cannot be the only basis for determining duty liability. Appeal dismissed - decided against Revenue. - E/56647/2013-EX [ SM ] - Final Order No.70295/2018 - Dated:- 30-1-2018 - Mr. Anil Choudhary, Member (Judicial) Shri Sandeep Kumar Singh, Deputy Commissioner (AR) for Appellant Shri Kapil Vaish, Chartered Accountant for Respondent ORDER Per : Anil Choudhary The present appeal by the Revenue is directed against Order-in-Appeal No. 72-74/CE/Alld/2012 dated 20/12/2012 passed by Commissioner of Central Excise Customs (Appeals), Allahabad. 2. The brief facts of the case are that respondents, a partnership firm were engaged in the manufacture of Poly Propylene Glasses falling und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2012 wherein Original authority reduced the demand to ₹ 17,37,623/- and imposed equal penalty. Penalty of ₹ 5,000/- was also imposed on a partner of firm. 3. Aggrieved by the said order, respondent-assessee preferred appeal before learned Commissioner (Appeals) and Department also preferred appeal on the issue of reduction on demand of duty. Partner of firm also filed appeal to Commissioner (Appeals). The learned Commissioner (Appeals) has disposed of all the appeals by a common Order-in-Appeal wherein in para 6.1 he observed, as under:- 6.1 Regarding first issue, I find that total production for the year 2007-08 to 2009-10 has been calculated by the department on the basis of average consumption of electricity used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the goods estimated to be produced and not brought on record were removed without payment of duty, demand for duty on such estimated goods cannot be confirmed. I also observe that the statements taken from the machine operators merely refers to consumption of raw materials for production of finished goods in a day as well as time required for manufacture of sheets. Nothing has been suggested in the statements of the machine operators and the statement of the partner off firm that the excess finished goods were manufactured and removed clandestinely from the factory without payment of duty. In the absence of any documentary evidence, I hold that clandestine removal off goods is not proved and, therefore, the demand of duty on this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sides, I find that the department has filed the appeal only on the ground of excess electricity consumption. I find that this issue is no more res-integra. By now it is the settled law that excise duty cannot be demanded on the basis of excess electricity consumption. 8. In this connection, I also refer the decision of Hon ble Allahabad High Court in the decision of R.A. Castings (supra) , where in Hon ble High Court has held- Mere electricity consumption cannot be the only basis for determining duty liability . The said judgment of Hon ble High Court has been affirmed by the Hon ble Supreme Court reported at 2011 (269) ELT. A108 (S.C.). 9. In view of the above I hold that there is no infirmity in the impugned Order-in-Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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