TMI Blog2009 (8) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Tribunal is clearly a possible view of facts and there is nothing on record to show that the Tribunal has ignored or failed to take into consideration any relevant fact or that the view of the Tribunal is in any way perverse. – revenue appeal dismissed. - 31 of 2009 - - - Dated:- 4-8-2009 - FERDINO. I. REBELLO AND D.G. KARNIK, JJ Mr. R.V. Desai, Sr. Advocae with Mr.Rajinder Kumar for the appellant. Mr. V. Sreedharan with Mr.Prakash Shah i/b PDS Legal for respondents. [Judgment Per D.G. Karnik, J] - This appeal is directed against the common judgement and order dated 9th May 2008 \ passed by the Customs, Excise and Service Tax Tribunal (for short "the Tribunal") filed by the respondent 1 and its directors. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 confirmed the duty and demand of Rs.11,06,430/for clandestine removal of the goods as alleged in the first show cause notice as also imposition of penalty to the extent of Rs.3,00,000/for such clandestine removal. The Tribunal however set aside the balance demand of Rs.3,50,43,610/made in the addendum/corrigendum notice and reduced the penalty to Rs.3,00,000/only. Aggrieved by the order of the Tribunal the Commissioner of Central Excise is in appeal. 3. While approaching the Settlement Commission for settlement the respondent 1 had admitted clearance without payment of duty to the extent of 471.075 metric tonnes of C.T.D Bars as was alleged against it in the first show cause notice dated 1st June 2004. The duty on the said clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. There was however no difference between the stock register and the actual quantity of the M.S. Ingots used as a raw material for production of C.T.D. Bars. On further investigation carried out by the Central Excise Authorities, it was discovered that the furnace oil consumed during the relevant period i.e from April 2002 to 23 rd June 2003 was much higher than that would have ordinarily been required for the production of C.T.D bars during that period. The Commissioner noted that about 50 litres of furnace oil is required for the purpose of production of 1 Metric Tonnes of C.T.D Bars. On the basis of consumption of the furnace oil, the Commissioner estimated the quantity of the C.T.D Bars produced by he respondent no.1 and after giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil. The Tribunal however did not agree with the conclusion of the Commissioner that the respondent no.1 had suppressed the production to the extent of 14,618 metric tonnes. 7. Rule no.173E of the Central Excise Rules deals with the determination of normal production and reads thus: Rule 173E. Determination of normal production Any Officer duly empowered by the Collector in this behalf may fix the quantum and period of time when the production in the assessee's factory was considered normal by such officer having regard to the installed capacity of the factory, raw material utilisation, labour employed, power consumed and such other relevant factors as he may deem appropriate. The normal quantum of production during a given time so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors mentioned in Rule 173E need not be present simultaneously. In a given case, where the accounts are fabricated the figures of raw material consumed or labour employed are not available it may not be possible to consider all the factors mentioned in Rule 173E for determining the production. In such a case, figures of energy used may be considered for the purpose of estimating the production. In the present case, M.S. Ingots is the basic raw material used in the manufacture of C.T.D. Bars. M.S Ingots is an excisable commodity. Credit of tax paid on M.S. Ingots was available to the respondent 1 while paying duty on the final product. The figures of M.S. Ingots need were available in the stock register and the actual stock tallied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement and/or called him for cross-examination. The Tribunal has held that the respondent 1 had explained the higher consumption of furnace oil and therefore the ratio of the case of Triveni Rubber (Supra) was not applicable to the present case. We find that on facts the Tribunal has properly distinguished the decision of the Supreme Court in Triveni Rubber (supra) and concur with the finding of fact recorded by the Tribunal that the furnace was severely damaged and on account of the consequent heat loss consumption of the furnace oil alone was not sufficient to estimate the production of C.T.D. Bars. The Tribunal has considered the admission of the respondent 1 before the Settlement Commission about the removal of the goods contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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