TMI Blog2019 (2) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... Since adjudicating authority has not rendered any finding in respect of the issue for which the matter was earlier remanded back to him. We hold that he was not in a position to give any adverse finding in this regards. We are firmly of the view that the backbone of the case made against the appellants is variation in power consumption. Since adjudicating authority has not found it fit to render any finding in this respect we draw adverse inference on it as has been done by the Commissioner (Appeal) - All the other evidences have been well considered by the Commissioner (Appeal) in his order for dropping the demands. Appeal dismissed - decided against Revenue. - E/99/2009-DB, E/390/2009-DB - Final Order No. 20195-20196/2019 - Dated:- 22-2-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. SANJIV SRIVASTAVA, TECHNICAL MEMBER Mr. K. Murali, Superintendent, AR For the Appellant Mr. G. Derrick Sam, Advocate For the Respondent ORDER Per: SANJIV SRIVASTAVA The present appeals have been filed by the Revenue against the Order-in-Appeal No. 80/2008-CE dated 04.11.2008 88-89/CE dated 14.11.2008 passed by the Commissioner (Appeal). By the said order Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her factory owners who have claimed to have got the weighment 'dbnd in the respondent's' weigh bridge. This aspect of the matter has not been looked into, by the Commissioner (Appeals). The respondents are relying on another 0I0 rendered by the Joint Commissioner who has dropped charges of clandestine removal against another similar industry on similar grounds. We are of the considered opinion that the matter has to go back to the Original Authority for de novo consideration for re-consideration of the material on record after granting full opportunity to the assessee including the plea for cross-examination of the witnesses. The matter is required to be re-adjudicated within four months from the date of receipt of this order, as the matter is an old one. All the pleas raised by the assessee are required to be reconsidered. The authority shall also consider the ruling of the Apex Court judgment in the case of Triveni Rubber and Plastics (cited supra) which clearly lay down that higher consumption of electricity is a pair higher production of goods. This matter is remanded to the original authority for do novo consideration. 2.2 Adjudicating Authority in the remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame but entirely different people. (v) Statements from the dealers of the assessee (Shri P. Selvan and Shri P. Radhakishnan) shows that there was enough evidence for intention on the part of the assessee for clandestine removal to customers who are interested in such materials. These aspect were also not considered by the Commissioner (Appeals). (vi) In the remand order, the Hon'ble CESTAT citing Apex Court judgment in the case of M/s. Triveni Rubber and Plastics Vs. CCE, Cochin that laid down that higher consumption of electricity is a pointer to higher production of goods, has directed the original authority to consider it. Thus the contention of the Commissioner (Appeal) that the principle enunciated in the above judgment are not applicable to the facts of me present case is not correct. (vii) Shri Abuthair, the Manager of M/s. Lal Steels had not denied the receipt of furnace oil in the factory carried by M/s. Matha Transport, Edapally, Kochi vide their transport Bill No. 591 dt. 10-10-2000 and payment of transportation charges in their accounts. They have not accounted for the same in the Form IV Register or in any other registers. The transport bill of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he test laid down by the Hon ble Apex Court in the case of Collector of Customs, Madras and Others vs. D. Bhoormull, 1983 (13) ELT 1546 (SC), that the in case of clandestine removal the revenue is required to prove the case not with mathematical precission but within the preponderance of probability is satisfied. Thus he prayed for setting aside the order of Commissioner (Appeal) and upholding the demands, as per the order of Additional Commissioner. 4.3 Arguing for the respondents, the Ld. Counsel submitted that i. the matter was specifically remanded back to the Original Authority for consideration of the evidences in relation to the consumption of power. He has made detailed submissions on the same which have been recorded in the order of the adjudicating authority at Para 5 is reproduced below: 5. As per the submission the following are the factors causing variation of power consumption. a. labour efficiency b. machinery consumption c. raw materials nature and quality d. additional provision of machinery e. fluctuation and failure in power supply f. nature of finished products g. consumption of power for lightning and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Triveni Rubber and Plastics Vs. CCE, Cochin [1994 (73) ELT 7 (SC)], which has clearly laid down that the higher consumption of electricity is a pointer to higher production of goods. Several points were raised in order to establish clandestine removal. The Hon'ble CESTAT particularly emphasized the point on power consumption. The learned adjudicating authority has observed only this much of power consumption. The factors causing variation on power consumption explained by the assessee against serial number a to m above are elaborately discussed by the original authority in the Order-in-Original and has been found unsustainable as there was no merit in such arguments. It is clear therefore that contrary to the decision of Hon ble CESTAT the Ld. Adjudicating Authority has not re-examined the issue of power consumption as specifically directed by Hon ble CESTAT. We have to therefore go back to first Order-in-Original along with the appellate order. There are 3 more bases of the case. One of them is excess receipts of raw material namely, furnace oil and ingots. On furnace oil adjudicating authority s conclusion is the investigating officers were able to verify the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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