D.N.PATEL,J. - (1.) This writ petition has been preferred by the petitioner challenging the show cause notice 05.11.2014 (Annexure 1), issued by the Joint Commissioner, Central Excise and Service Tax, Jamshedpur as well as the Order-in-Original bearing No. 04/Joint commr/2016 passed by the Joint Commissioner, Central Excise and Service Tax, Jamshedpur dated 18/19.02.2016 (Annexure 4), mainly on the ground that the show cause notice and Order-in-Original has been passed on presumption and surmises. Further the petitioner has also challenged the Order-in-Original dated 18/19.02.2016 before the Appellate Authority i.e. the Goods and Service Tax and Central Excise (Appeal) whereby the appeal filed by the petitioner has been dismissed confirming the demand raised by the Respondent No. 3 in Order-in-Original dated 18/09.02.2016. As per the petitioner, highest case of the department is that there is some possibilities of clandestine removal of M.S. Ingots, which is a final product of this petitioner.
(2.) Factual Matrix: - This writ petitioner is manufacturing M.S. Ingots since long. - Show cause notice dated 05.11.2014, was given by the Joint Commissioner, Central Excise and Service Tax, Jamshedpur for the period running from October, 2013 to March, 2014. The petitioner appeared before Respondent No. 3 pursuant to the show cause notice and filed its reply on 24.10.2015. - Thereafter, the Order-in-Original was passed by the Joint Commissioner, Central Excise and Service Tax, Jamshedpur on 18/19.02.2016 (Annexure 4). - Being aggrieved and dissatisfied by the Order-in-Original, the petitioner preferred statutory Appeal before the Appellate Authority, which was registered as Order-in-Appeal No. 100/JSR/2017 which was dismissed vide order dated 14.07.2017 (Annexure 5). - Being aggrieved and dissatisfied by the Appellate Order, the present writ petition has been preferred.
(3.) Arguments canvassed by the counsel for the petitioner: - Counsel appearing for the petitioner submitted that the whole show cause notice is issued upon presumptions and surmises about unaccounted manufacturing of M.S. Ingots and clandestine removal of the final product and nothing has been proved by the respondents. Only on the basis of presumptions, the show cause notice has been decided. The consumption of electricity pattern, which is referred in the show cause notice as well as in the Order-in-Original, is absolutely baseless. It is submitted by the counsel for the petitioner that looking to Annexure-G as referred in para 4 of the show cause notice, reveals the electricity consumption per M.T., which is absolutely in consonance with the report given by the Joint Plant Committee constituted by the Ministry of Steel, Government of India and as per this report, the consumption can be 1800 KWH/T (as referred in paragraph No. 20 of a decision 2009 (237) ELT 674 in the case of R.A. Casting (Private) Ltd. v. CCE) . Thus, there is no scientific survey carried out by the respondents which can lead to conclusive evidence of unaccounted manufacturing of M.S. Ingots and clandestine removal thereof. - It is further submitted by the counsel for the petitioner that Dr. N.K. Batra's report has been referred to every now and then, since 2003 onwards, by the respondents and there are no less than one dozen judgments in which it has been observed right from the learned Tribunal to the Hon'ble Supreme Court of India that electricity consumption per se cannot be relied upon by the respondents for proving clandestine removal of final product, because there is no set pattern for consumption of electricity. There are several reports given by more reliable institutions and persons than Dr. N.K. Batra, which have been referred in the aforesaid decisions of R.A. Castings. The respondents ought to have carried out experiment of consumption pattern of electricity at the factory premises of the noticee, which has been referred to in paragraph No. 22 of the decisions of R.A. Castings Private Ltd, which has been gone into by the respondents. The whole show cause notice is based upon presumptions and surmises. The burden of proof lies upon the respondents that there is a clandestine removal of finished product, which has been discharged, at all, by the respondents. - It is also submitted by the counsel appearing for the petitioner that the respondents are surprised about the loss sustained by the petitioner. Merely because there is a loss to this petitioner, that does mean that there is a clandestine removal. - Counsel appearing for the petitioner has relied upon the decisions which are as under:- (a) R.A. Castings decisions 237 ELT 674 , which is confirmed by the Division Bench of Hon'ble Allahabad High Court 2010 (1) taxman.com. 342 (Allahabad), against which SLP preferred by the department, has also been dismissed. (b) W.P. No. 173 of 2014 decided on 22.04.2014 by the Hon'ble Calcutta High Court. - Counsel appearing for the petitioner has pointed out that in several similarly situated cases, in which Dr. N.K. Batra's report has been referred to and relied upon, for proving clandestine removal of the finished products, in the show cause, ultimately in the Orders-in-Original, the show cause notices have been dropped by the adjudicating authority itself. The similarly situated cases are as under: (a) Globe Steel and Alloys Pvt. Ltd, the Order-in-Original: 02/Central Excise/commr/2015 dated 31.03.2015,copy whereof has been given to the counsel for the respondents. (b) M/s. Madhura Ingots and Steel Co. Pvt. Ltd. Order-in-Original: 07/Central Excise/commr/2015 dated 19.05.2015. (c) M/s. Jagannath Cement Works Pvt. Ltd being Order-in-Original: 31/Denovo/Commr/2015 dated 15.12.2015. (d) M/s. Kamsa Steel Pvt. Ltd. being Order-in-Original: 33/commr/2015 dated 21.12.2015, and several other orders, copies of which have been given to this Court and given to the respondents. - On the basis of aforesaid decisions, it is submitted by the counsel for the petitioner that electricity consumption pattern, is useless argument on behalf of the respondents. Every now and then, such argument has been canvassed in the Order-in-Original and the first adjudicating authority has dropped the baseless notice and whenever the first authority has confirmed such ground, the Tribunals have passed the Orders and quashed such ground, like in the case of R.A. Castings Pvt. Ltd v. CCE , which is approved by Hon'ble Allahabad High Court and SLP has been dismissed by the Hon'ble Supreme Court. It is further submitted that whenever Orders-in-Original are passed as stated hereinabove, dropping the show cause notice, the same are placed before the committee consisting of two Chief Commissioners and they are taking decisions, whether to prefer any further appeal and all aforesaid cases where the show cause notice has been dropped and the ground of the electricity consumption pattern has also been approved, in the Order-in-Original, no appeal has been preferred by the department. Thus, it has become fashion with the respondent that arbitrarily in few cases, ground of Dr. N.K. Batra will be raised for few industries and for rest of the industries, no such ground is ever raised. Because of this N.K. Batra's report, several petitions have been filed and several decisions have to be given by the Courts. - Counsel for the petitioner has submitted that even a circular has been issued, which is at Annexure 3 dated 26.06.2014 that whenever any decision has been finally accepted by the respondents department, the same has to be followed in other cases. This circular has also been followed in this case. In fact, the respondents could prove the clandestine removal of the finished products viz. M.S. Ingots and hence show-cause notice dated 05.11.2014 as well as Order-in-Original dated 18/19.02.2016 which are at Annexure 1 and Annexure 4 respectively, may kindly be quashed and set aside.;