Page 128 - ELT_15th June 2020_VOL 372_Part 6th

806 EXCISE LAW TIMES [ Vol. 372

(v) Several decisions have been given by the Tribunals which have been
confirmed by the High Courts that electricity consumption alone if
adopted as a basis of the demand, the same is not tenable. The re-
spondents can take the electricity consumption pattern as a corroborative
piece of evidence, but, in absence of substantive proofs like -
(a) Details about the purchase of the raw material within the
manufacturing units and no entries are made in the books of
account or in the statutory records.
(b) Manufacturing of finished product with the help of the
aforesaid raw material, which is not mentioned in the statu-
tory records.
(c) Quantity of the manufacturing with reference to the capacity
of production by the noticee unit.
(d) Quantity of the packing material used.
(e) The total number of the employees employed and the pay-
ment made to them.
In this case, statements of the labourers ought to have been
reduced in writing, by the department which ought to refer
that over and above of the salary paid by the noticee, some
other type of remunerations, in cash or kind have been paid
by the noticee, such statements are must.
(f) Ostensible discrepancy in the stock of raw materials and the
finished product.
(g) Clandestine removal of goods with reference to entry/exit of
vehicles like trucks etc. in the factory premises.
(h) If there is any proof about the loading of the goods in the
Truck, like weight of truck etc. at the weighbridge, security
gate records, transporter documents such as lorry receipts,
statements of the truck drivers, entries of the trucks/vehicles
at different check-post. Different types of forms which are
supplied by the Commercial Tax Department like Road Per-
mit supplied by the Commercial Tax Department, receipts by
the consignees etc.
These documents ought to have been collected by the respondent-
department, if at all, they are interested in collection of the correct
Central Excise Duty from the noticee upon whom or upon which
allegation of clandestine removal of the finished product is levelled.
The electricity consumption report like Dr. N.K. Batra’s report can
hardly be treated as a substantive evidence. Time and again, the
decisions have been given by the Tribunals but the respond-
ents-departments are turning deaf-ear to. In this case, they are
also turning deaf-ear to their own circular dated 26-6-2014 (An-
nexure-2 to the memo of this writ petition). In this case, the
respondents are relying upon Dr. N.K. Batra’s report. All
these are nothing, but, the possibilities, for clandestine re-
moval, but, for proving the clandestine removal, the substan-
tive piece of evidence is must. Few such evidences have been
referred by this Court. The list of these evidences is not ex-
haustive :-
EXCISE LAW TIMES  15th June 2020  128