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TMI Blog2020 (1) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... minium wire rod. On the basis of investigation carried out by the Department, a Show Cause Notice dated 13.06.1994 was issued wherein it was alleged that the appellant had received huge amount of inputs i.e. aluminium wire rods, on which they have availed Modvat credit but, however, they have not accounted the final products which could be manufactured from the said inputs and thus they had clandestinely removed the said unaccounted final products without payment of Central Excise duty. The learned Commissioner after following the due process of law adjudicated the SCN vide the impugned order dated 27.09.2001 wherein he observed that on comparison of manufacturing trends for other manufacturers in the same Commissionerate, the quantum of input i.e. aluminium rods used in the manufacture will generate equivalent quantum of aluminium wire in weight subject to normal loss of 1% in the form of aluminium wire scrap. It is the contention of the learned Commissioner that input - output ratio of 1:1 can be applied to ascertain the actual quantity of final products manufactured by the appellant subject to normal loss of 1 to 2% as scrap. He also observed that the manufacturing process emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire proceedings, no evidence, much less corroborative evidence, has been adduced to show that input goods have been procured to manufacture goods for clandestine clearance. No evidence for extra production or unaccounted cash or statement of buyers or transporters has been obtained. It is a settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing some evidence. The Tribunal has taken consistent view that in absence of corroborative evidence, the charge of clandestine clearance cannot be levelled against the assessee. Some of the decisions are as below: * Ghodavat Pan Masala Products Ltd vs. CCE 2004 (175) ELT 182 (Tri-Mum) * CCE vs. Supreme Fire Works Factory 2004 (163) ELT 510 (Tri-Chennai) * CCE vs. Suvidha Limited 2009 (236) ELT 675 (Tri-Del) 8. We further find that the whole basis of applying the input output ratio of 1:1 to arrive at the quantity of final products alleged to be clandestinely cleared by the appellant is solely based on the production pattern of other assessee in the same Commissionerate. We are of the view that the learned Commissioner made a fundamental error in maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons for deviations, if any, taking also into account the consumption of various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. Therefore, there can be no generalization nor any uniform norm of 1046 units as sought to be adopted by the Revenue especially when there is no norm fixed under Rule 173E till date by the Revenue and notified by it. The electricity consumption varies from one unit to another and from one date to another and even from one heat to another within the same date. There is, therefore, no universal and uniformly acceptable standard of electricity consumption, which can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. In the following case laws, it has been held that the consumption of the electricity alone is not sufficient to determine the production :................ 22. The clandestine manufacture and removal of excisable goods is to be proved by tangible, direct, affirmative and incontrovertible evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which can be followed thereafter and the Revenue in the present case not having conducted any experiment whatsoever cannot be permitted to justify the demands raised. It will be appropriate on the part of the Revenue to conduct experiments in the factory of the appellants and others and that too on different dates to adopt the test results as the basis to arrive at a norm, which can be adopted for future. The impugned demand based merely on assumptions and presumptions cannot, therefore, be sustained nor could be justified both on facts and in law. 24. The law is well settled that in every case of alleged clandestine removal, the onus is on the Revenue to prove what it alleges with positive and concrete evidence. In the absence of any positive evidence brought by the Revenue to discharge its onus, the impugned order cannot be sustained. 25. The law does not entitle the Revenue to disregard all the statutory excise records as well as audited financial accounts and records of the assessee-company, which have been duly verified and accepted by the competent authorities from time to time not only for central excise but also for purposes of income-tax etc. ........................ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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