TMI Blog2018 (8) TMI 1875X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the appellant revenue has not been able to point out any error or illegality in the findings recorded by the Tribunal, warranting interference by this Court. Appeal dismissed. - CEA Nos. 56 and 71 of 2015 (O&M), - - - Dated:- 7-8-2018 - Ajay Kumar Mittal and Aveneesh Jhingan, JJ. Shri Anshuman Chopra, Advocate, for the Appellant. Shri Siddarth Sharma, Authorised Representative and Munish Kumar Garg, Advocate, for the Respondent. ORDER This order shall dispose of CEA Nos. 56 and 71 of 2015, as according to the Learned Counsel for the parties, the issue involved in both these appeals is identical. However, the facts are being extracted from CEA No. 56 of 2015. 2. CEA No. 56 of 2015 has been filed by the appellant-revenue under Section 35G of the Central Excise Act, 1944 (in short, the Act ) against the order dated 23-12-2014, Annexure A.3 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short, the Tribunal ) in Excise Appeal No. E/4381/2004 [2015 (323) E.L.T. 600 (Tri. - Del.)], claiming following substantial questions of law :- (i) Whether the Hon ble CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed balance in the RG-1 register but quantity of raw material was found short. Thereafter, statements of Alok Sharma, Managing Director, K.J. Josepth, Works Manager and S.R. Karup, authorised signatory were recorded on 25-11-1999 itself under Section 14 of the Act who admitted the above evasion. It was also observed that in one Invoice No. 146, dated 24-11-1999 issued in the name of M/s. Dicco Conductors, Delhi, duty had not been debited. On scrutiny of records, it was noticed that the said invoice had not been issued from regular invoice book but had infact been issued from another invoice book which was not pre-numbered except Sr. No. 146 and in which earlier 5-6 invoices had been torn off. Follow up action was conducted on 25-11-1999 in the premises of M/s. Dicco Conductors, Shahdara, Delhi. In stock taking, 2640 kgs. of aluminum wire of 5.9 mm and 1852 kgs. of aluminum wire rods of 9.5 mm were found over and above the recorded balances in the statutory excise records and reported to have been received from the assessee on 24-11-1999. This stock was seized under Section 110 of the Customs Act, 1962. Further on 26-11-1999, K.J. Joseph, Works Manager of the unit in his statement co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the case law on the point, it has been categorically recorded by the Tribunal that the Modvat credit demand is based on the difference between the consumption of aluminum wire rods calculated by the departmental officers based on the approximate mass per kilometer (Km.) of various types of aluminum alloys standard conductors given in the ISI standard and the consumption of aluminum wire rod as recorded by the assessee company in its Central Excise records. For estimating the actual consumption of the aluminum wire rods, the departmental officers have calculated the weight of the aluminum conductors manufactured by the assessee during each financial year based on the approximate mass in per Kms. given in the Table 2 of ISI standard IS 398/1994 for the conductors of various diameters. It has been further recorded that mass in terms of Kg. per Km. given in Table 2 of ISI standard IS 394/1994 is only approximate mass and is not a figure which is 100% correct. It was held that the approximate mass in terms of Kg. per Km. given in Table 2 of the ISI specification cannot be treated as absolutely correct figure and applied in every case. Thus, merely on the basis of the approximate weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generated and the aluminum wire rod cleared as such had been added. However, it is seen that the mass in terms of Kg. per Km. given in Table 2 of the ISI standard IS 394/1994 is only approximate mass and is not a figure which is 100% correct. Table 1 of the ISI standard gives the nominal diameter, the minimum diameter and the maximum diameter and mass in terms of kg per KM of the aluminum alloy wires used in the manufacture of standard aluminum alloy conductors. The diameter of aluminum alloy wire as per para 7.1.2 of the ISI standard can be 1% more or 1% less than the nominal diameter. Therefore, the weight per Km. of the aluminum alloy standard conductors given in Table 2 for the standard wires of different cross sectional area and specifications is only approximate weight and the weight of stranded conductors can be 1% more or 1% less than the weight mentioned in this table. In our view, therefore, the approximate mass in terms of Kg. per Km. given in the Table 2 of the ISI specification cannot be treated as absolutely correct figure and applied in every case. It is also seen that even as per the department s calculations, only during 1995-96 the actual consumption of the wire r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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