Page 130 - ELT_15th June 2020_VOL 372_Part 6th

808 EXCISE LAW TIMES [ Vol. 372

In view of the aforesaid decisions, If there is a violation of principle of
natural justice, writ is always tenable at law.
(vii) Thus, the department has not done any homework and the show
cause notice dated 7-2-2014 (Annexure-1) has been issued. This type
of short-cut should not have been followed by the department. There is no
short-cut for success. The aforesaid documents and evidences could have
been collected very easily by the department, if at all, department is of
the opinion that there is a clandestine removal of finished product
viz. M.S. Ingots by the petitioner.
(viii) The respondents have also been given time and again the guidance
by various decisions that whenever they are relying upon the elec-
tricity consumption pattern, experiment in the very same unit ought to
have been carried out for manufacturing of 1 MT of the finished product or
for at least 1000 such unit, if any other product is involved, so that average
consumption of electricity can be accurately measured by the respondent-
department. Electricity consumption, which is based upon Dr. N.K.
Batra’s report is absolutely useless, with reference to the units for
which allegation is levelled for clandestine removal without carry-
ing out any experiment of consumption of electricity in the very
same unit. Hence, we, hereby direct the respondents, henceforth not to use
Dr. N.K. Batra’s report against any noticee especially when the depart-
ment is levelling allegations of clandestine removal of finished products,
unless, the experiment of consumption of electricity is carried out at the
factory premises of the very same assessee/noticee. The consumption of the
electricity depends upon the efficiency of the machines also. It also depends
upon the fact whether the noticee is utilizing obsolete machinery or modern
machinery. Dr. N.K. Batra might have carried out experiment in a
factory where there may be efficient machinery, whereas machines
used by the noticee may not have the same efficiency. Therefore, cross ex-
amination of Dr. N.K. Batra is must. Department can use the report of Dr.
N.K. Batra’s as the guidelines and nothing beyond that. Department has
to bring its own experts at the factory premises of the noticee. De-
partment must carry out an experiment of the consumption of the
electricity at the manufacturing place of the noticee either for 1 MT
or for 1000 unit etc. so that, the electricity consumption pattern can
be measured for the very same machinery and thereafter, it can be
compared with the quantity of the finished products mentioned, in
the books of accounts, with the electricity bills of the noticee. This
exercise is must before issuing the show cause notice by the respondent-
department, whenever the department is levelling allegation of clandestine
removal on the basis of electricity consumption pattern. Instead of doing
this exercise, straight way, Dr. N.K. Batra’s report has been relied
upon, which has no relevance with the factory premises of the no-
ticee. Hence, such report shall not be relied upon by the respondents, un-
less the aforesaid experiment is carried out at the factory premises of the
noticee. This is not a first case in which such guidelines has been
given. Observations made in paragraph Nos. 20.1, 20.2, 21, 22.1, 23
& 24 of the decisions rendered by the Tribunal in the case of R.A.
Castings Pvt. Ltd. v. CCE, reported in 2009 (237) E.L.T. 674 (Tri.) read
as under :-
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