M/s Shree Balaji Furnaces Pvt. Ltd. Versus CCE&CGST, Alwar
Central Excise
2018 (10) TMI 5 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 14-9-2018
Ex. Appeal No. 51663 of 2018-SM – A/52985/2018-SM[BR]
Central Excise
Mr. V. Padmanabhan, Member (Technical)
Sh. Ajay Mishra, Advocate for the appellant
Sh. P. R. Gutpa, AR for the Respondent
ORDER
Per: V. Padmanabhan:
The present appeal is against the Order-in-Appeal No. 46-SM-CE-JPR-2017 dated 07.02.2018 passed by the Commissioner, Central Excise & CGST, Alwar.
2. The appellant is engaged in the manufacture of M. S. Ingots falling under Chapter 72 of the First Schedule of the Central Excise Tariff Act, 1985. The appellant had declared, vide their ER-5 returns, their input output ratio. The ratio declared was 1.1 MT of scrap for manufacture of 1.0 MT of M.S. Ingots. The Department noticed that during the period April, 2015 to March, 2016, the appellant accounted for production of M. S. Ingots lesser than
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April, 2015 to March, 2016. But for an earlier period the Department had made a similar demand on the basis of the observations of the audit team. In such a case, after the remand of the matter by the Tribunal, the Jurisdictional Commissioner has dropped such demand after taking into account the quantum of runners and riser arising in the factory, which was diverted for the manufacture of finished products captively.
ii) He further submitted that the demand has been raised on the basis of the presumed production determined on the basis of the arithmetical formula declared by the appellant in ER-5 returns. He added that the actual quantum of goods manufactured depends upon various other factors such as temperature of the furnace, quantity of raw material etc.
iii) He also submitted that the demand raised in similar circumstances on the basis of presumption production on the basis of ER-5 returns has been set aside by the Tribunal. Finally, he submitted that the demand may be set asid
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ustained. The allegation of clandestine clearance has been made by the Revenue authorities, but the same has not been supported by any documentary evidence. The entire demand has been worked out on the basis of presumption, taking into account the formula declared by the appellant.
9. Clandestine clearance needs to be established on the basis of tangible documentary as well as oral evidence. In the present case, no such evidence has been brought on record by the Revenue.
10. The appellant has relied on the decision of the Tribunal in the case of Easter India Chemicals Ltd. and Raj Tandon vs. CCE, Ghaziabad – 2017-TIOL-1118-CESTAT-All. After going through the decision of the Tribunal I find that the Tribunal has set aside the demand made only on the basis of input output ratio declared in ER-5 returns. The Tribunal has observed as under:
“5. Having considered the rival contentions and on perusal of record, it is observed that input/ output data in ER-5 return for the year 2007-08 is
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