TMI Blog2023 (5) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ye estimation alone which appellants claim to be either erroneous or process loss since input are clearly accounted for and input stock matching with the stock register. Further it has been consistently held by this Tribunal ever since pronouncement of the judgment in R.A. Casting Pvt. Ltd. [ 2008 (6) TMI 197 - CESTAT NEW DELHI ] that excess electricity consumption cannot be a parameter to establish clandestine removal and with reference to other ancillary factors, which respondent Department attributes to be of corroborative evidence, it can be stated that loss or marginal profit noted in the accounting statements none reflection of runners and risers factor in the register that accounted only 3 to 4% of ingots, commission income or weighm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Central Excise Customs, Nagpur vide orders dated 31.03.2009, 26.02.2010 and 17.01.2013 against the appellant company and penalty against its Director on the ground of clandestine removal of goods manufactured by it, calculated on the basis of electricity consumption and other ancillary evidence within the period from 2003 to 2007, 2007 to 2009 and Sept. 2009 to July, 2010 is assailed in these appeals. 2. Fact of the case, in a nut shell, is that the appellant company is a manufacturer of Iron and Steel Ingots, Alloy Ingots and Sponge Iron having its factory at Kamleshwar, Nagpur. It has also got kiln and connected machinery to manufacture sponge iron from iron ore that has been captively consumed for manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty against each demand on the appellant company under Section 11 of the Central Excise Act, 1944 and penalty of Rs.40 lakhs and Rs.10 lakhs respectively under Rule 26 of Central Excise Rules, 2002 was confirmed against the other appellant Lalchand Fakirchand Garg, Director of the company. Legality of these three orders has been assailed before this forum. In the meantime, since the Director is stated to have died during pendency of these appeals for which his appeals are already abated and, therefore, we confine the discussions to the appeals filed by the appellant company. 3. During the course of arguments, learned Counsel for the appellant Shri Rajesh Ostwal argued that electricity consumption varies substantially and it is depende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that placing reliance on the statements of the witnesses and taking into consideration some extraneous factors as well as depriving the appellants from cross-examining relied upon witnesses except one Superintendent Shri J.K. Devani, such adjudication order was passed which is contrary to the law and procedure of an adjudication process of the present litigation. Shri Rajesh Ostwal, learned Advocate further submitted that the onus is on Department to prove the allegation of clandestine removal with positive and concrete evidence concerning which in R.A. Casting Pvt. Ltd., a kind of guidelines is available and that has not been followed by the Commissioner for which his order is liable to be set aside. 4. In response to such submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce concerning clandestine removal of goods from the factory of the appellant without payment of duty in unaccounted manner is noticed by the Department during the investigation and minor shortages available in output record was on eye estimation alone which appellants claim to be either erroneous or process loss since input are clearly accounted for and input stock matching with the stock register. Further it has been consistently held by this Tribunal ever since pronouncement of the judgment in R.A. Casting Pvt. Ltd. cited (supra) that excess electricity consumption cannot be a parameter to establish clandestine removal and with reference to other ancillary factors, which respondent Department attributes to be of corroborative evidence, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine manufacture of finished goods; (iii) Manufacture of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate records, transporters documents, such as L.Rs, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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