TMI Blog2019 (6) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... based on assumption presumption and it is a settled principle of law that suspicion howsoever strong cannot take place of proof - Further as has been held in COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [ 2010 (9) TMI 669 - ALLAHABAD HIGH COURT] , tax is on manufacture and it is to be proved beyond doubt that the goods have been actually manufactured, which are subjected to excise duty. Unfortunately, no positive evidence is coming on record to that effect. Unfortunately, no positive evidence is coming on record to that effect. Article 265 of the Constitution of India says that no tax shall be levied or collected except by authority of law. Unless the manufacture of the steel ingots is proved to the hilt by authentic, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing turnover of the excisable goods i.e. M.S. Ingots to evade tax by clandestinely removing the same, information concerning raw material purchase, daily production, value of clearances, electricity consumption for the period 2003-04 and 2004-05 were obtained, detail was examined with respect to input output ratio vis-a-vis electricity consumed on the basis of Technical Opinion Report on Productivity of Induction Furnace , prepared through case study analysis done by one Dr. N.K. Batra, Professor of the Department of Materials Metallurgical Engineering of the Indian Institute of Technology (IIT), Kanpur in December, 2000 with the co-operation and joint efforts of the respondent-department. In respect of such ingot production, his repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained workers, type of furnace which was single converter whereas Dr. Batra s report was based on double converter furnace, and last but not the list, consumption of supply of electricity for other purpose including its use in the office as well as staff quarters. He further submitted that entire show-cause notice was based on a case study and not on any norms that would provide authenticity to the report and the additional ground on which respondent-department placed its reliance is based on cost of production which is allegedly higher than transaction value and also on the percentage of wastage amounting to 17%-18% during production process is not founded on any fixed parameter since no literature has supported the contention of the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... register, gate register of transportation of finished goods and the certificate from Energy Auditor as well as Chartered Engineer were procured and submitted only on 16.04.2008. Invoice of procurement of furnace was attached to appeal on 02.02.2001 for which those should be regarded as documents generated to defend the case. In placing reliance on case laws reported in [1994 (73) ELT 7 (SC)], [2001 (130) ELT 404 (SC)], [1983 (13) ELT 1546 (SC)], [2007 (216) ELT 503 (SC)], [2005 (190) ELT 508 (Tri.-Mumbai)], Learned Authorised Representative for the respondent-department pleaded for confirmation of the order passed by the Commissioner. 5. We have heard from both sides at length and perused the case record. Respondent-depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remained incomplete and product become wastage to which learned Authorised Representative countered by saying that apparently those factors were taken into consideration by Dr. Batra for which lower and upper range of electricity consumption varies between 555 units and 1026 units per MT. However, Appellant had produced Chartered Engineers reports to substantiate that the electricity consumption factors was within the reasonable limit but learned Commissioner had not considered the same. As found from the case record learned Chief Commissioner, while forwarding the report of Dr. Batra to the Commissioner for action at their end, had clearly directed that the officers were to take assistance of independent technical experts on the same which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been conducted in the factory of the appellant for arriving at the consumption norm of electricity in the factory of the appellant, it can only be stated that strong suspicion exist against the appellant concerning clandestine removal on the same but the same could not be substantiated. As has been held in the case laws of R.A. Castings Pvt. Ltd. cited above, the entire case appears to have been based on assumption presumption and it is a settled principle of law that suspicion howsoever strong cannot take place of proof. Further as has been held in R.A. Castings Pvt. Ltd. case, tax is on manufacture and it is to be proved beyond doubt that the goods have been actually manufactured, which are subjected to excise duty. Unfortunately, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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