Page 133 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SUKH SAGAR METALS (P) LTD. v. UNION OF INDIA 811

(ix) The aforesaid decision has been upheld by the Division Bench of Al-
lahabad High Court in a decision reported in 2010 (1) taxman.com
342 (Allahabad) and SLP preferred against the said decision has also
been dismissed by the Hon’ble Supreme Court. Thus, the report of
Dr. N.K. Batra has been several times, criticized by various adjudi-
cating authority vis-à-vis clandestine removal and the respondent-
department has also issued a Circular dated 26-6-2014 and several
times such notice has also been dropped while passing the Order-
in-Original, as stated hereinabove, as pointed out by the Counsel for
the petitioner. Despite these facts, in violation of such directions and
the circular of the department, the respondents are still issuing
show cause notices, levelling allegations of clandestine removal of
the finished product, based upon the electricity consumption pat-
tern shown by Dr. N.K. Batra. We, therefore, direct the respondents not
to mention Dr. N.K. Batra’s report in their show cause notice unless an
experiment is carried out by the respondent department in the factory
premises of the noticee for production of 1 MT or for production of more
than sufficiently large quantity like 1000 units etc, in any other cases, be-
cause electricity consumption depends upon the nature of machin-
ery. Even two refrigerators of same kind and type and capacity may
not have the same consumption of electricity, because one may be
new and another may be old.
(x) Likewise such type of other reports are also available in this country,
which are as under :-
(a) Dr. N.K. Batra’s report
(b) Report by Joint Plant Committee constituted by the Ministry
of Steel, Government of India.
(c) Report of NISST, Mandi Gobindgarh given in June-July,
2006.
(d) Report of Executive Director, All India Induction Furnace
Association, New Delhi, and all these reports say different
electricity consumption, per ton. These facts have been re-
ferred in paragraph nos. 19 & 20 of the decision reported in
2009 (237) E.L.T. 674 (Tri.) and the same reads as under :-
“19. The main question to be decided in the instant appeals here
is whether the appellants during the period December 2001 to
March, 2005 have actually manufactured M.S. Ingots in excess
of what has been recorded in their statutory records and re-
moved the said quantity clandestinely from their factory with-
out payment of duty. The excess production has been worked
out on the basis of electricity consumption for which the
standard norms are imported from report of late Mr. N.K. Ba-
tra, Professor of Material and Metallurgical Engineers, IIT Kanpur.
20. We find that the following reports have been referred to
either by the appellants or the Revenue laying down the
norms for the consumption of electricity for the manufacture
of one MT of steel ingots :
(i) 555 to 1046 (KWH/T) as per Dr. Batra’s report :
EXCISE LAW TIMES  15th June 2020  133