Page 126 - ELT_15th June 2020_VOL 372_Part 6th

804 EXCISE LAW TIMES [ Vol. 372

33/commr/2015, dated 21-12-2015, and several other orders,
copies of which have been given to this Court and given to
the respondents.
• On the basis of aforesaid decisions, it is submitted by the Counsel
for the petitioner that electricity consumption pattern, is useless ar-
gument, on behalf of the respondents. Every now and then, such
argument has been canvassed, in the Order-in-Original and the first
adjudicating authority has dropped the baseless notice and when-
ever the first authority has confirmed such ground, the Tribunals
have passed the Orders and quashed such ground, like in the case
of R.A. Castings Pvt. Ltd v. CCE, which is approved by the Allaha-
bad High Court and SLP has been dismissed by the Hon’ble Su-
preme Court. It is further submitted that whenever Orders-in-
Original are passed as stated hereinabove, dropping the show cause
notice, the same are placed before the committee, consisting of two
Chief Commissioners and they are taking decisions, whether to pre-
fer any further appeal or not and all aforesaid cases where the show
cause notice has been dropped and the ground of the electricity
consumption pattern has also not been approved, in the Order-in-
Original, no appeal has been preferred by the department. Thus, it
has become fashion with the respondent that arbitrarily in few cases,
ground of Dr. N.K. Batra will be raised for few industries and for
rest of the industries, no such ground is ever raised. Because of this
N.K. Batra’s report, several petitions have been filed and several de-
cisions have to be given by the Courts.
• Counsel for the petitioner has submitted that even a circular has
been issued, which is at Annexure-2, dated 26-6-2014 that whenever
any decision has been finally accepted by the respondents-department, the
same has to be followed in other cases. This circular has also not been
followed in this case. In fact, the respondents could not prove the
clandestine removal of the finished products viz. M.S. Ingots and
hence show cause notice dated 7-2-2014 as well as Order-in-Original
dated 27-2-2015/13-3-2015 which are at Annexure-1 and Annxure-3,
respectively, may kindly be quashed and set aside.
4. Arguments canvassed by the Counsel for the respondents :
• Counsel for the respondents submitted that the petitioner is having
efficacious and alternative remedy against the Order-in-Original
and the appeal has been preferred before the Central Excise and
Service Tax Appellate Tribunal (CESTAT) under Section 35(B) of the
Central Excise Act, 1944. In fact, appeal has also been preferred.
• Counsel appearing for the respondents submitted that Dr. N.K.
Batra’s report is not an only ground as mentioned in the show cause
notice. There are several other grounds like high cost of production
vis-à-vis income from sale, unrealistic low amount of expenditure
incurred on salary of employees and manufacturing activity incurs
losses and still petitioner continues, whereas in the profit & loss ac-
count from the non-core activities, profit has been shown by ma-
nipulating books of account. In detail, consumption of electricity
pattern has been mentioned in Annexure-F, which is referred in
paragraph-5 of the show cause notice. Similarly, other grounds have
also been dealt with in detail, in the Order-in-Original. Very meager
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