D.N.PATEL, J. - (1.) This writ petition has been preferred challenging the show cause notice dated 30.03.2007 (Annexure-1), issued by the Additional Commissioner, Central Excise and Service Tax, Jamshedpur as well as the Order-in-Original No. 01/Addl. Commr/08 passed by the Additional Commissioner, Central Excise and Service Tax, Jamshedpur dated 28/29.02.2008 (Annexure-3), mainly on the ground that the show cause notice and order-in-original has been passed on presumption and surmises. The highest case of the department is that there is some possibilities of clandestine removal of the 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 30.03.2007 was given by the Additional Commissioner, Central Excise and Service Tax, Jamshedpur for the period running from 2002-03 to 2006-07, upto December, 2006. The petitioner appeared before Respondent No. 3 pursuant to the show cause notice and filed its detail reply on 07.01.2008. The petitioner specifically brought to the notice of respondent No. 3 about the decision of Hon'ble Tribunal as well as the Hon'ble High Court and had further requested to drop the show cause notice against the petitioner. Thereafter, the Order-in-Original was passed by the Additional Commissioner, Central Excise and Service Tax, Jamshedpur on 28/29.02.2008 (Annexure-3). Being aggrieved and dissatisfied by the Order-in-Original, the petitioner had preferred appeal before the Commissioner (Appeals), Central Excise and Service Tax, Jamshedpur, but, the said appeal was dismissed as being barred by limitation. Thereafter, the petitioner had filed a writ petition before this Hon'ble Court being W.P.(T) No. 1179 of 2012, but, the same was also dismissed. Thereafter, the petitioner had filed an appeal before the Central Excise and Service Tax Appellate Tribunal, challenging the order dated 30.11.2009, passed by the Commissioner (Appeals), but, the same was dismissed on the sole ground that the petitioner has preferred its initial appeal before the Commissioner (Appeals) beyond the period of limitation. Since the Order-in-Original had not merged with the orders passed by the Commissioner (Appeals) and the Central Excise and Service Tax Appellate Tribunal, the petitioner has preferred this writ petition under Article 226 of the Constitution of India, being aggrieved and dissatisfied by the Order-in-Original.
(3.) Arguments Canvassed By The Counsel For The Petitioner - Counsel appearing for the petitioner submitted that there is gross violation of principle of natural justice. The documents, which are referred to and relied upon, in the show cause notice like: a. Nucleus Group report; b. The All India Induction Furnace Association report, though they were never supplied. 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-C and D as referred in para 3 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 reported in 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 notice, which has been referred to paragraph no. 22 of the decisions of R.A. Castings Private Limited, which has not 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 not been discharged, at all, by the respondents. Counsel appearing for the petitioner has relied upon the decisions which are as under:- a) R.A. Castings decisions reported in 237 ELT 674, which is confirmed by the Division Bench of Hon'ble Allahabad High Court reported in 2010(1) taxman.com. 342 (Allahabad), against which SLP preferred by the department, has also been dismissed, and b) W.P. No. 173 of 2014 decided on 22.04.2014 by the Hon'ble Calcutta High Court. Counsel 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 herein above, 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 or not and all aforesaid cases where the show cause notice has been dropped and the ground of the electricity consumption pattern has also not 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-2 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 not been followed in this case. In fact, the respondents could not prove the clandestine removal of the finished products viz. M.S. Ingots and hence show-cause notice dated 30.03.2007 as well as Order-in-Original dated 28/29.02.2008 which are at Annexure-1 and Annexure-3, respectively, may kindly be quashed and set aside. ;