9911796707
TMI Blog2024 (3) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that the appellants have shown production in excess of the capacity or actual production with a view to avail refund of the duty paid. Revenue conducted one heat cycle for productions of ingots in the factory of the appellants and it was observed that 1200 Ltrs. of LDO (Light Diesel Oil )was consumed for production of 7267 kg of copper ingots; while the appellants consumed 382500 Ltrs. of LDO for manufacture of ingots/scrap in the year 2005-06; as per the above 2316356 kg of copper ingots could have been manufactured whereas, the appellants have shown production of 2500915 kg of copper ingots during the period; thus 184559 kg of copper ingots were shown to have been produced in excess without actually manufacturing the same; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual verification of the actual production therefore, the same cannot be disregarded. They submit that the reliance on Polychem Products India Pvt. Ltd. 2005 (192) ELT Tribunal Delhi, is misplaced as the show cause notice was issued on the basis of physically verified data. 3. The Ld. Authorized Representative rely on the case of D. Bhoormull 1983 (13) ELT 546 (SC) and J.M. Aggarwal Tobacco company Pvt. Ltd. 2010 (261) ELT 1008 Tribunal Delhi and Shingar Lamps Pvt. Ltd. 2002 (150) ELT 290 (Tri.-Delhi) and submits that * Department is not required to prove the case with mathematical precision. * The burden to rebut many facts relating to the illicit business remain with the concerned person who has the knowledge of the same. * Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is about clandestine removal and not about excess production and the case of Shingar Lamps (Supra) is against the Revenue. In Polychem Products (Supra) it was held that unaccounted goods cannot be based on presumptions. Moreover, in the instant case, the principle of Revenue neutrality is applicable. He relies upon the following cases : * Crystal crop. protection P. Ltd. 2013 (295) ELT 418 (Tri.- Del.) * Shree Nath Industries 2018 (364) ELT 904 (Tri.-Chan.) * Larknon Ferrous Metals Ltd. 2016 (344) ELT 1100 (Tri.-Chan.) 6. Regarding the test check, the Ld. Counsel submits that it was conducted after keeping the furnace idle at room temperature for 66 hours; actual production over the year cannot be ascertained on the basis of a single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been manufactured whereas, the appellants have shown production of 2500915 kg of copper ingots during the period; thus 184559 kg of copper ingots were shown to have been produced in excess without actually manufacturing the same. We find that Revenue has missed out the fact that consumption of fuel depends on the atmospheric temperature, quality of raw material, condition of the furnace, initial temperature of furnace, per day frequency of the heats and the skill of the labourers. 10. Revenue has not discussed this aspect at all. Moreover, the consumption of raw material i.e. copper scrap was not analyzed. Even the stock of fuel, raw material and final product was not taken at the time of audit so as to ascertain where the records mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenues which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of: (a) Raw materials, in excess of that contained as per the statutory records; (b) Instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty. (c) Discovery of such finished goods outside the factory (d) Instances of sales of such goods to identified parties. (e) Receipt of sale proceeds, whether by cheque o by cash, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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