Page 127 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SUKH SAGAR METALS (P) LTD. v. UNION OF INDIA 805
amount of salary has been paid by this petitioner to his employees,
there is a loss caused to the petitioner since long, still they are con-
tinuing in the manufacturing activities and the petitioner is showing
profit in their profit and loss account by showing the profit from the
non-core activities and no satisfactory explanation has been given
by the petitioner. These aspects of the matter have been mentioned
in detail in the Order-in-Original and hence, this Court may not en-
tertain this writ petition.
REASONS
5. Having heard Counsels for both the sides and looking to the facts
and circumstances of the case, we, hereby, quash and set aside the Order-in-Original,
dated 27-2-2015/13-3-2015 (Annexure-3 to the memo of this writ petition) mainly for the
following facts and reasons :
(i) Show cause notice was given by the respondents on 7-2-2014 for the
period running from January, 2009 to September, 2013 mainly on the
ground that there is unrealistic electricity consumption, high cost of
production vis-à-vis income from sale, unrealistically low amount
of expenditure towards salary of employees and though manufac-
turing activity incurs losses, still the petitioner unit continues and
profit is shown in the books of account from non-core activities by
manipulating books of account. On this ground, the show cause no-
tice has been given by the Commissioner, Central Excise and Service
Tax, Jamshedpur.
(ii) In the show cause notice, Dr. N.K. Batra’s report has been referred
to and relied upon. Moreover, there is also reference of Nucleus
Group report as well as there is a reference of All India Induction Fur-
nace Association report.
(iii) Counsel appearing for the petitioner has relied upon several deci-
sions, as stated hereinabove. It ought to be kept in mind by the respond-
ents that the electricity consumption pattern can be a corroborative ground
and not a substantive ground at all. Thousands of possibilities cannot be
equated with one truth. The grounds, which are referred in the Order-
in-Original, are in fact leading the respondents towards the highest prob-
abilities and nothing beyond that to suspect that there is clandestine re-
moval of the finished product by the noticee. Nonetheless, for exact
proof of unaccounted manufacturing of finished products and for
clandestine removal thereof, more labour was required to be done by the
respondents. It has become fashion with the respondents-department
to rely upon a document, since 2003 onwards, which is known as
report given by Dr. N.K. Batra, so-called Professor of IIT, Kanpur.
Petitioner is in possession of an e-mail communicated by IIT as to
whether such report has ever been given by IIT, Kanpur, the answer
given by IIT, Kanpur in negative (Annexure-4, 4/1 to the memo of
this petition).
(iv) Right from 2003 onwards, in not a single matter decided by the
Commissioner or by the Tribunal or by any adjudicating authority,
the department has produced Dr. N.K. Batra for cross examination by any
assessee in whole of India. Nobody knows the authenticity of Dr. N.K. Ba-
tra’s report. Nobody is error-proof authority much less. Dr. N.K. Batra.
Hence, his cross examination is must. His report is not a conclusive
piece of evidence as per Indian Evidence Act, 1972.
EXCISE LAW TIMES  15th June 2020  127