Ms Stan Commodities Pvt Ltd Through One ... vs The Commissioner Of Central Excise ... on 21 November, 2017

[Cites 11, Cited by 1]

Jharkhand High Court

Ms Stan Commodities Pvt Ltd Through One ... vs The Commissioner Of Central Excise ... on 21 November, 2017

● Being aggrieved and dissatisfied by the show cause notices as well as by the OrderinOriginal, the petitioner preferred statutory Appeal before the learned Customs, Excise & Service Tax Appellate Tribunal, Kolkata which was dismissed on the ground of limitation vide order dated 10.09.2014. ● Being aggrieved and dissatisfied by the order dated 10.09.2014, the present writ petition has been preferred. However, the petitioner had filed Interlocutory Application primarily confining its prayer by challenging the OrderinOriginal 3 dated 30.03.2010, which was issued by the Commissioner, Central Excise, and Jamshedpur on 09.04.2010, which is at Annexure2 of the writ petition.

3. Arguments canvassed by the counsel for the petitioner:

● Counsel appearing for the petitioner submitted that the whole show cause notices are 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 OrderinOriginal, is absolutely baseless. It is submitted by the counsel for the petitioner that looking to AnnexureB as referred in the show cause notices, 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. Vs. 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 4 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 not been gone into by the respondents. The whole show cause notices 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.

● It is also submitted by the counsel 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 not 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 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.

(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 OrdersinOriginal, the show cause notices have been dropped by the adjudicating authority itself. The similarly situated cases are as under:

(a) Globe Steel & Alloys Pvt. Ltd, the OrderinOriginal: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 & Steel Co. Pvt. Ltd. OrderinOriginal:07/ Central Excise/commr/2015 dated 19.05.2015.

31/ Denovo/ Commr/2015 dated 15.12.2015.

(d) M/s. Kamsa Steel Pvt. Ltd. being OrderinOriginal: 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 Orderin 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 Vs. 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 OrdersinOriginal 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 OrderinOriginal, 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 in fact, the respondents could not prove the clandestine removal of the finished products viz. M.S. Ingots and hence showcause notices dated 30.07.2008, 04.02.2009, 18/19.11.2009 as well as OrderinOriginal dated 30.03.2010/09.04.2010 which are at Annexure1 Series and Annexure2, respectively, may kindly be quashed and set aside. 6

4. Arguments canvassed by the counsel for the respondents:

● Counsel for the respondents submitted that the petitioner is having efficacious and alternative remedy against the OrderinOriginal and the appeal has been preferred before the Central Excise and Service Tax Appellant Tribunal (CESTAT) under Section 35(B) of the Central Excise Act, 1944, which was dismissed. ● Counsel appearing for the respondents submitted that Dr. N.K. Batra's report is not an only ground as mentioned in the showcause notices, there are several other grounds. In detail, consumption of electricity pattern has been mentioned in Annexure B. Similarly, other grounds have also been dealt with in detail, in the OrderinOriginal and, hence, this Court may not entertain this writ petition. Reasons:

5. Having heard counsels for both the sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the Orderin Original dated 30.03.2010/09.04.2010 (Annexure2 to the memo of this writ petition) mainly for the following facts and reasons:

(i) Showcause notices were given by the respondents on 30.07.2008, 04.02.2009,18/19.11.2009 for the period running from July, 2007 to December, 2007, from January, 2008 to November,2008 and for the period December 2008 to July, 2009 mainly on the ground that there is unrealistic electricity consumption. On this ground, the showcause notices have been given by the Commissioner, Central Excise and Service Tax, Ranchi.

(ii) In the showcause notices, Dr. N.K. Batra's report has been referred to and relied upon. Moreover, there is also reference of Nucleus Group report as well as there is a reference of All India Induction Furnace Association report. Dr. N.K. Batra's report was given along with the showcause notices.

(iii) Counsel appearing for the petitioner has relied upon several decisions, as stated hereinabove. It ought to be kept in mind by the respondents that the electricity consumption pattern can be a corroborative ground and not a substantive ground at all. Thousands of possibilities cannot be equated with one truth. The grounds, which are referred in the OrderinOriginal, are in fact leading the respondents towards the highest probabilities and nothing beyond that to suspect that there is a clandestine removal of the finished product by the noticee. Nonetheless, for exact proof of unaccounted manufacturing of finished products and for clandestine removal thereof, more labour was required to be done by the respondents. It has become fashion with the respondents department to rely upon a document, since 2003 onwards, which is known as report given by Dr. N.K. Batra, socalled Professor of IIT, Kanpur. When IIT, Kanpur is inquired whether such report has ever been given by IIT, Kanpur, the answer was given by IIT, Kanpur in negative (Annexures12, 12/1).

(iv) Right from 2003 onwards, in not a single matter decided by the Commissioner or by the Tribunal or by any adjudicating authority, the department has produced Dr. N.K. Batra for cross examination by any assessee in whole of India. Nobody knows the authenticity of Dr. N.K. Batra's report. Nobody is error proof authority much less Dr. N.K. Batra. Hence, his cross examination is must. His report is not a conclusive piece of evidence as per Indian Evidence Act, 1972.

(v) Several decisions have been given by the Tribunals which have been confirmed by Hon'ble High Courts that electricity consumption alone if adopted as a basis of the demand, the same is not tenable. 8 The respondents can take the electricity consumption pattern as a corroborative piece of evidence, but, in absence of substantive proofs like

(a) Details about the purchase of the raw material within the manufacturing units and no entries are made in the books of account or in the statutory records.

(b) Manufacturing of finished product with the help of the aforesaid raw material, which is not mentioned in the statutory records.

(d) Quantity of the packing material used.

(e) The total number of the employees employed and the payment made to them.

(f) Ostensible discrepancy in the stock of raw materials and the finished product.

(g) Clandestine removal of goods with reference to entry/exit of vehicles like Trucks etc. in the factory premises.

(h) If there is any proof about the loading of the goods in the Truck, like weight of truck etc. at the weighbridge, security gate records, transporter documents such as lorry receipts, statements of the truck drivers, entries of the trucks/vehicles at different checkpost. Different types of forms which are supplied by the Commercial Tax Department, like Road Permit supplied by the 9 commercial tax department, receipts by the consignees etc. These documents ought to have been collected by the respondent department, if at all, they are interested in collection of the correct central excise duty from the noticee upon whom or upon which allegation of clandestine removal of the finished product is levelled. The electricity consumption report like Dr. N.K. Batra report can hardly be treated as a substantive evidence. Time and again, the decisions have been given by the Tribunals, but, the respondents departments are turning deafear to . In this case, the respondents are relying upon Dr. N.K. Batra's report. All these are nothing, but, the possibilities, for clandestine removal, but, for proving the clandestine removal, the substantive piece of evidence is must. Few such evidences have been referred by this Court. The list of these evidences is not exhaustive:

(i) The department should have collected the proof of amount received from the consignees, statement of consignees, receipts of sale proceeds by the consignor and its disposal.

(vi) In the instant case, though the petitioner was granted an opportunity of being heard, but, while passing the Orderin Original, the adjudicating authority has not dealt with the main contention advanced on behalf of the petitioner and no reasons have been assigned for differing with the decisions relied upon by the petitioner, particularly, the decision rendered in the case of R.A. Castings Ltd. In this context, reference may be made to the decision of the Hon'ble Supreme Court in the case of Assistant 10 Commissioner, Commercial Tax Department, Works Contract Act and Leasing, Kota Vs. Shukla and Brothers, reported in (2010) 4 SCC 785. In the said decision, the Hon'ble Supreme Court, vide Para14, has held as under: "14. The principle of natural justice has twin ingredients: firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself."

Further, the Hon'ble High Court of Gujarat, in the case of Vadilal Gases Ltd. Vs. Union of India, reported in (2015) 64 Taxmann.com 56 (Gujarat), in paras 10 and 11, has held as under: "10. At this juncture, reference may be made to the decision of the Supreme Court in the case of Asstt. Commissioner of Commercial Tax V. Shukla and Brothers (2010) 4 SCC 785 on which reliance has been placed by the learned counsel for the petitioner wherein the court has held that the principles of natural justice has twin ingredients; firstly the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing.; and secondly, the orders so passed by the authorities should give reasons for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case vitiate the order itself.

11. Examining the facts of the present case in the light of the above decision, while it cannot be said that the impugned orders are totally nonreasoned orders, at the same time, the main contention advanced on behalf of the petitioner has not been dealt with and no reasons have been assigned for not accepting the same. The impugned order does not show that the authority concerned has applied its mind to the contention raised by the petitioner. Therefore, as held by the Supreme Court in the above decision, the principles of natural justice would stand violated in the light of the fact that the concerned authority has not applied its mind to the principal contention raised by the petitioner, inasmuch as, it has not given any reason in respect thereof." 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 home work and the show 11 cause notices dated 30.07.2008, 04.02.2009, 18/19.11.2009 (Annexure1 Series) have been issued. This type of shortcut should not have been followed by the department. There is no shortcut 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 electricity 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 respondentdepartment. 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 carrying 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 report against any noticee especially when the department 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 12 factory where there may be efficient machinery, whereas, machines used by the noticee may not have the same efficiency. Therefore, cross examination of Dr. N.K. Batra is must. Department can use the report of Dr. N.K. Batra as the guidelines and nothing beyond that. Department has to bring its own experts at the factory premises of the noticee. Department 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, straightway, Dr. N.K. Batra's report has been relied upon, which has no relevance with the factory premises of the noticee. Hence, such report shall not be relied upon by the respondents, unless 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 and 24 of the decisions rendered by the Tribunal in the case of R.A. Castings Pvt. Ltd. Vs. CCE, reported in 237 ELT 674 read as under: "20.1 From the perusal of these reports, we find that wide variations in the consumption of electricity have been reported for the manufacture of one MT of steel ingots. This renders the norm of 1046 units adopted by the Revenue as arbitrary. Why not adopt the norm of 1800 KWH/T or 1427KWH/T or 650 to 820 units/MT or 851 units/MT as per various reports referred 13 to above or why not adopt some figure between 555 to 1046 units as norm as per Dr. Batra's report?

20.2 We note that no experiments have been conducted in the factories of the appellants for devising the consumption norms of electricity for producing one MT of steel ingots. It is the basic philosophy in the taxation matters that no tax can be levied on the basis of estimation. In this case, there is added problem. Estimation of production fluctuates widely depending upon the fact as to which report is adopted. Tax is on manufacture and it is to be proved beyond doubt that the goods have been actually manufactured, which are leviable to excise duty. Unfortunately, no positive evidence is coming on record to that effect. Article 265 of the Constitution of India says that no tax shall be levied or collected except by authority of law. Unless the manufacture of the steel ingots is proved to the hilt by authentic, reliable and credible evidence, duty cannot be demanded on the basis of hypothesis and theoretical calculations, without taking into consideration the ground realities of the functioning of the factories. High consumption of electricity by itself cannot be the ground to infer that the factories were engaged in suppression of production of steel ingots. The reasons for high consumption of electricity in the case of the appellants' factories have not at all been studied and analysed by the Revenue independently. Instead, the norm of 1046 units fixed as per Dr. Batra's report has been blindly applied to the appellants' cases to work out the excess production. This approach is flawed and does not have sanctity.

21. The law is well settled that the electricity consumption cannot be the only factor or basis for determining the duty liability that too on imaginary basis especially when Rule 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption of various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. Therefore, there can be no generalization nor any uniform norm of 1046 units as sought to be adopted by the Revenue especially when there is no norm fixed under Rule 173E till date by the Revenue and notified by it. The electricity consumption varies from one unit to another and from one date to another and even from one heat to another within the same date. There is, therefore, no universal and uniformly acceptable standard of electricity consumption, which can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. In the following case laws, it has been held that the consumption of the electricity alone is not sufficient to determine the production;

(i) Pure Enterprises (P) Ltd. v. CCE, Rajkot 1999 (111) E.L.T. 407 (Tri.)

(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 (TriDel.) 14

(v) Mukesh Dye Works v. CCE, Mumbai VI2006 (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, Vadodara1997(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 (TriChennai);

(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, ChennaiII reported in 2005 (182)E.L.T. 389(T)= 2005 (98) ECC 790 (T).

23. The Tribunal has consistently taken the view that wherever electricity consumption alone is adopted as the basis to raise demands, the order 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 indifferent 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 alleges 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)

(ix) The aforesaid decision has been upheld by the Division Bench of Allahabad High Court in a decision reported in 2010(1) taxman.com 342 15 (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 adjudicating authority visàvis clandestine removal and the respondentdepartment has also issued a circular dated 26.06.2014 and several times such notice has also been dropped while passing the Order in Original, as stated herein above, as pointed out by the counsel for the petitioners. 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 pattern 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 notice for production of 1 MT or for production of more than sufficiently large quantity like 1000 units etc. in any other cases, because electricity consumption depends upon the nature of machinery. 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.

(d) Report of Executive Director, All India Induction Furnace Association, New Delhi, and all these reports say different 16 electricity consumption, per ton. These facts have been referred in paragraph nos.19 & 20 of the decision reported in 237 ELT 674 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 removed the said quantity clandestinely from their factory without 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. Batra, 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' report;

(ii) 1800 KWH/T as per the report by Joint Plant Committee constituted by the Ministry of Steel, Government of India;

(iii) 1427 KWH/T as per the report of NISST, Mandi, Gobindgarh given in JuneJuly, 2006;

(iv) 650 units to 820 units/MT as per the Executive Director, All India Induction Furnace Association, New Delhi;

(v) 851 units/MT in the case of Nagpal Steel v.

CCE, Chandigarh reported in 2000 (125)E.L.T. 1147"

(emphasis supplied) In view of the aforesaid electricity consumption report, per tonnage, it appears that the variation is from 555 units to 1800 KWH/Per Ton. This is mainly because of the nature of the machinery utilized by the noticee. Looking to the facts of the present case, the electricity consumption pattern as has been given in AnnexureB of the show cause notices, which reveals that this petitioner has consumed electricity absolutely in consonance with the report given by Joint Plant Committee, constituted by the Ministry of Steel, Government of India and for few months it is even less than that. Thus, there are varieties of report available in the markets, one could not have been chosen by the respondents, arbitrarily, without carrying out the experiment of consumption of electricity for one 17 ton of manufacturing at the noticee's manufacturing unit. This type of experiment is a must by the department, whenever respondents are canvassing the ground of electricity consumption pattern visavis clandestine removal of finished products. Otherwise, without such experiment, if any one of the aforesaid report relied upon, then it is arbitrariness on the part of the respondents and whenever there is any arbitrariness, there is always violation of Article 14 of the Constitution of India, because for few of the noticees such type of reports are not relied upon, whereas, for rest of the assessees, as per the choice of the respondents, such type of reports will be relied upon and in fact, this has happened in this case. Several OrdersinOriginal have been pointed out during the course of arguments by the counsel for the petitioner wherein, electricity consumption pattern allegation levelled in show cause notice and ultimately after adjudication, the show cause notice has been dropped. Thus, without experiment is being carried out at the premises of the noticee, use of any of the Committee's report for electricity consumption pattern always leads to arbitrariness on the part of the respondentdepartment. Whenever arbitrariness is present, equality is absent. Equalities and arbitrariness are strong enemies of each other. When equality is present, arbitrariness is absent.

6. Hence, this Court is remanding the matter to the Commissioner, Central Excise & Service Tax, Jamshedpur. This Court is not much going into detail of further arbitrariness in the OrderinOriginal. There appears to be very high sounding reasons, but, if they are viewed with zoom lens camera, it appears that nothing is proved by the respondents.

7. The OrderinOriginal is based upon mere presumptions and possibilities, and, nothing has been proved at all by the respondents, especially unaccounted 18 manufacturing of M.S. Ingots and the clandestine removal thereof.

8. We, therefore, quash and set aside the OrderinOriginal passed by the Commissioner, Central Excise & Service Tax, Jamshedpur dated 30.03.2010/09.04.2010 (Annexure2 to the memo of this writ petition).

9. As a cumulative effect, as the OrderinOriginal passed by the Commissioner, Central Excise & Service Tax, Jamshedpur dated 30.03.2010/09.04.2010 (Annexure2 to the memo of this writ petition) is quashed and set aside, the matter is remanded for adjudication of the show cause notices dated 30.07.2008, 04.02.2009,18/19.11.2009 and the matter will be decided afresh, keeping in mind the aforesaid principles, especially if the respondents are relying upon Dr. N.K. Batra's report, the experiment shall be carried out at the premises of petitioner, as stated herein above, for manufacturing of one ton or any such quantity which should be sufficiently large, so as to understand the pattern of consumption of electricity for manufacturing of M.S. Ingots as well as keeping in mind the nature of evidences as referred in para 5(v) may also be collected as far as possible.

10. Accordingly, this writ petition is allowed and disposed of.

(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) Ajay/ N.A.F.R.

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