Page 125 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SUKH SAGAR METALS (P) LTD. v. UNION OF INDIA 803
Ltd. v. CCE, case. Thus, there is no scientific survey carried out by
the respondents which can lead to conclusive evidence of unac-
counted manufacturing of M.S. Ingots and clandestine removal
thereof.
• It further submitted by the Counsel for the petitioner that Dr. N.K.
Batra’s report has been referred to every now and then, since 2003
onwards, by the respondents and there are no less than one dozen
judgments in which it has been observed right from the Learned
Tribunal to the Hon’ble Supreme Court of India that electricity con-
sumption per se cannot be relied upon by the respondents for prov-
ing clandestine removal of final product, because there is no set pat-
tern for consumption of electricity. There are several reports given
by more reliable institutions and persons than Dr. N.K. Batra, which
have been referred in the aforesaid decisions of R.A. Castings. The
respondents ought to have carried out experiment of consumption
pattern of electricity at the factory premises of the noticee, which
has been referred to paragraph No. 22 of the decisions of R.A. Cast-
ings Private Ltd., which has not been gone into by the respondents.
The whole show cause notice is based upon presumptions and sur-
mises. The burden of proof lies upon the respondents that there is
clandestine removal of finished product, which has not been dis-
charged, at all, by the respondents.
• It is also submitted by the counsel for the petitioner that the re-
spondents are surprised about the loss sustained by the petitioner.
Merely because there is a loss to this petitioner that does not mean
that there is a clandestine removal.
• Counsel appearing for the petitioner has relied upon the decisions
which are as under :-
(a) R.A. Castings decisions reported in 2009 (237) E.L.T. 674
(Tri.), which is confirmed by the Division Bench of Allaha-
bad High Court reported in 2010 (1) taxman.com. 342 (Allaha-
bad) = 2012 (26) S.T.R. 262 (All.) = 2011 (269) E.L.T. 337 (All.)
against which SLP preferred by the department, has also
been dismissed, and
(b) W.P. No. 173 of 2014 decided on 22-4-2014 by the Calcutta
High Court [2014 (306) E.L.T. 216 (Cal.)].
• Counsel for the petitioner has pointed out that in several similarly
situated cases, in which Dr. N.K. Batra report’s report has been re-
ferred to and relied upon, for proving clandestine removal of the
finished products, in the show cause, ultimately in the Orders-in-
Original, the show cause notices have been dropped by the adjudi-
cating authority itself. The similarly situated cases are as under :-
(a) Globe Steel & Alloys Pvt. Ltd., the Order-in-Original :
02/Central Excise/commr/2015, dated 31-3-2015, copy
whereof has been given to the Counsel for the respondents.
(b) M/s. Madhura Ingots & Steel Co. Pvt. Ltd. Order-in-Original :
07/ Central Excise/commr/2015, dated 19-5-2015.
(c) M/s. Jagannath Cement Works Pvt. Ltd. being Order-in-
Original : 31/De novo/Commr/2015, dated 15-12-2015.
(d) M/s. Kamsa Steel Pvt. Ltd. being Order-in-Original :
EXCISE LAW TIMES  15th June 2020  125