Page 132 - ELT_15th June 2020_VOL 372_Part 6th

810 EXCISE LAW TIMES [ Vol. 372

(ii) Kapadia Dyeing Bleaching and Finishing Works v. CCE, Surat -
2000 (124) E.L.T. 821 (Tri.)
(iii) A. Arti Leathers (P) Ltd. v. CCE and C, Ahmedabad - 2001 (136)
E.L.T. 1255 (Tri. - Mum.)
(iv) Parshuram Cement Ltd. v. CCE, Lucknow - 2003 (160) E.L.T. 213
(Tri. - Del.)
(v) Mukesh Dye Works v. CCE, Mumbai-VI - 2006 (196) E.L.T. 237
(Tri. - Mum.)
(vi) Hans Castings Pvt. Ltd. v. CCE, Kanpur - 1998 (102) E.L.T. 139
(T)
(vii) M/s. Padmanabh Dyeing and Finishing Works v. CCE, Vadodara -
1997 (90) E.L.T. 343(T)
(viii) M/s. Madhu Products v. CCE, Hyderabad - 1999 (111) E.L.T. 197
(T).
22.1 For want of evidence relating to the above points, clandestine
removal cannot be sustained merely on the basis of the technical opinion
report of Mr. Batra. In this connection, the following case laws are relied :
(i) Emmtex Synthetics Ltd. v. Commissioner of Central Excise, New
Delhi reported in 2003 (151) E.L.T. 170 (Tri. - Del.);
(ii) Commr. of Central Excise, Chennai v. Dhanavilas (Madras) Snuff
Co. reported in 2003 (153) E..T. 437 (Tri. - Chennai);
(iii) Commissioner of Central Excise, Madurai v. Madras Suspensions
Ltd. reported in 2003 (156) E.L.T.807 (Tri. - Chennai);
(iv) Commissioner of Central Excise, Coimbatore v. Sangamitra Cotton
Mills (P) Ltd. reported in 2004 (163) E.L.T. 472 (Tri - Chennai);
(v) Commissioner of Central Excise Coimbatore v. Velavan Spinning
Mills reported in 2004 (167) E.L.T. 91 (Tri. - Chennai);
(vi) M. Veerabadhran and Others v. Commissioner of Central Excise,
Chennai-II reported in 2005 (182) E.L.T. 389 (T) = 2005 (98) ECC
790 (T).
23. The Tribunal has consistently taken the view that wherever elec-
tricity consumption alone is adopted as the basis to raise demands. the or-
der of the lower authorities have been held to be unsustainable in
law and set aside and the Revenue had been directed to carry out
experiments in different factories on different dates to arrive at the
average to be adopted as a norm, which can be followed thereafter
and the Revenue in the present case not having conducted any experiment
whatsoever cannot be permitted to justify the demands raised. It will be
appropriate on the part of the Revenue to conduct experiments in
the factory of the appellants and others and that too on different
dates to adopt the test results as the basis to arrive at a norm, which
can be adopted for future. The impugned demand based merely on
assumptions and presumptions cannot, therefore, be sustained nor
could be justified both on facts and in law.
24. The law is well settled that in every case of alleged clandestine
removal, the onus is on the Revenue to prove what is alleged with
positive and concrete evidence. In the absence of any positive evidence
brought by the Revenue to discharge its onus, the impugned order cannot
be sustained.”
(emphasis supplied)
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