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Kamal Kumar Bhuwalka, Managing Director, M/s. Bhuwalka Castings & Forgings Pvt. Ltd (Formerly Known As M/s. Bhuwalka Steel Industries Ltd) & Others v/s C.C.E.-Bangalore


Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M P S STEEL CASTINGS PRIVATE LIMITED [Active] CIN = U27310TZ1996PTC006850

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- BHUWALKA STEEL INDUSTRIES LIMITED [Active] CIN = L27209KA1981PLC004343

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- S R FORGINGS LTD [Active] CIN = U28910CH1980PLC004250

Company & Directors' Information:- C P S STEEL INDIA PRIVATE LIMITED [Active] CIN = U27104TZ2003PTC010552

Company & Directors' Information:- S KUMAR INDUSTRIES LIMITED [Active] CIN = U30009GJ1988PLC010840

Company & Directors' Information:- R B FORGINGS PRIVATE LIMITED [Active] CIN = U29211PB1996PTC018511

Company & Directors' Information:- KAMAL CORPORATION PRIVATE LIMITED [Active] CIN = U27107RJ2007PTC025203

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- A K C STEEL INDUSTRIES LTD [Active] CIN = L27109WB1957PLC023360

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- B B FORGINGS PVT LTD [Not available for efiling] CIN = U27101WB1981PTC033345

Company & Directors' Information:- D. H. CASTINGS PRIVATE LIMITED [Active] CIN = U27310PB2009PTC033256

Company & Directors' Information:- FORGINGS PRIVATE LIMITED [Under Liquidation] CIN = U13209DL1960PTC003211

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- C S CASTINGS PRIVATE LIMITED [Active] CIN = U27105PB2000PTC024010

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- KAMAL FORGINGS PRIVATE LIMITED [Active] CIN = U27109WB1998PTC086687

Company & Directors' Information:- H. R. STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U67120WB1989PTC047666

Company & Directors' Information:- S K P STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27310WB1997PTC085261

Company & Directors' Information:- CASTINGS INDIA PVT LTD [Active] CIN = U27101WB1996PTC078196

Company & Directors' Information:- A D STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27300GJ2020PTC119118

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- A P FORGINGS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC056843

Company & Directors' Information:- A J CASTINGS PRIVATE LTD [Active] CIN = U74899DL1987PTC027618

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- A M R STEEL INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U27100MH2010PTC203176

Company & Directors' Information:- D B FORGINGS PRIVATE LIMITED [Active] CIN = U27109DL1998PTC092680

Company & Directors' Information:- G S C CASTINGS PRIVATE LIMITED [Active] CIN = U27100PB1996PTC017826

Company & Directors' Information:- Y D STEEL PRIVATE LIMITED [Strike Off] CIN = U27109WB1997PTC086155

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- A G CASTINGS PRIVATE LIMITED [Strike Off] CIN = U27310PB1997PTC019495

Company & Directors' Information:- N S P FORGINGS PRIVATE LIMITED [Active] CIN = U34300HR1988PTC030340

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- J A V FORGINGS PRIVATE LIMITED [Active] CIN = U13209HR1984PTC019195

Company & Directors' Information:- L P CASTINGS PVT LTD [Amalgamated] CIN = U13209DL1980PTC011006

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- P R CASTINGS PVT LTD [Active] CIN = U27320PB1992PTC012673

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- P L FORGINGS PRIVATE LIMITED [Active] CIN = U27106PB1998PTC020980

Company & Directors' Information:- A R STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27104TN1995PTC030382

Company & Directors' Information:- K E C FORGINGS PRIVATE LIMITED [Active] CIN = U28910PB2003PTC025920

Company & Directors' Information:- B. M. N. FORGINGS PRIVATE LIMITED [Active] CIN = U27106WB2007PTC118576

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- STEEL CASTINGS OF INDIA PVT LTD [Active] CIN = U52392MP1981PTC001808

Company & Directors' Information:- B P STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U28900MH1959PTC011426

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- H H J FORGINGS PVT LTD [Active] CIN = U28991PB1994PTC014337

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- R S CASTINGS PRIVATE LIMITED [Active] CIN = U27101HR1984PTC017261

Company & Directors' Information:- K S STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27320OR1993PTC003340

Company & Directors' Information:- D K CASTINGS PRIVATE LIMITED [Active] CIN = U27310BR1992PTC005061

Company & Directors' Information:- A S STEEL INDUSTRIES PVT LTD [Strike Off] CIN = U27209WB1983PTC035796

Company & Directors' Information:- C. I. U. CASTINGS PVT. LTD. [Active] CIN = U27209WB1994PTC064109

Company & Directors' Information:- BHUWALKA & CO. PVT LTD [Active] CIN = U51109WB1952PTC020591

Company & Directors' Information:- D S CASTINGS PRIVATE LIMITED [Active] CIN = U27200MH1980PTC023599

Company & Directors' Information:- M S INDUSTRIES & FORGINGS PVT LTD [Active] CIN = U20299WB1943PTC011530

Company & Directors' Information:- KAMAL INDIA PRIVATE LIMITED [Active] CIN = U74899DL1986PTC025780

Company & Directors' Information:- STEEL CASTINGS PVT LTD [Active] CIN = U27310WB1956PTC023017

Company & Directors' Information:- C S FORGINGS PRIVATE LIMITED [Active] CIN = U27104PB1995PTC017035

Company & Directors' Information:- V S FORGINGS PVT LTD [Active] CIN = U27104WB1981PTC033407

Company & Directors' Information:- A G FORGINGS PRIVATE LIMITED [Strike Off] CIN = U02911KA1990PTC011485

Company & Directors' Information:- T C FORGINGS PVT LTD [Strike Off] CIN = U27310PB1990PTC010533

Company & Directors' Information:- M K S FORGINGS PVT LTD [Strike Off] CIN = U27100PB1992PTC012585

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- E & G STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U28113PN2009PTC134643

Company & Directors' Information:- N K STEEL INDUSTRIES PVT LTD [Strike Off] CIN = U27205WB1980PTC033122

Company & Directors' Information:- J R FORGINGS PVT LTD [Strike Off] CIN = U27103WB1975PTC030143

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- B B CASTINGS PRIVATE LIMITED [Strike Off] CIN = U28939CH1997PTC020062

Company & Directors' Information:- D D FORGINGS PRIVATE LTD [Active] CIN = U74899DL1980PTC010352

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- D M K CASTINGS PVT LTD [Active] CIN = U27310PB1986PTC006752

Company & Directors' Information:- J B STEEL INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999MH1954PTC009352

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- B N STEEL INDUSTRIES PVT LTD [Active] CIN = U27109WB1959PTC024368

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- A M Q STEEL PRIVATE LIMITED [Strike Off] CIN = U27310UP2012PTC053823

Company & Directors' Information:- KAMAL STEEL FORGINGS PRIVATE LIMITED [Active] CIN = U27310WB2007PTC120786

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- S R CASTINGS PRIVATE LIMITED [Strike Off] CIN = U27105PB1989PTC009964

Company & Directors' Information:- S D CASTINGS & FORGINGS PVT LTD [Strike Off] CIN = U51109WB1995PTC073803

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- R M STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1981PTC011723

Company & Directors' Information:- INDIA FORGINGS PRIVATE LIMITED [Active] CIN = U27102UP1960PTC002791

Company & Directors' Information:- L. S B FORGINGS PVT LTD [Under Liquidation] CIN = U28910WB1974PTC029416

Company & Directors' Information:- KUMAR INDUSTRIES PRIVATE LIMITED [Active] CIN = U35911UP1957PTC002656

Company & Directors' Information:- A J FORGINGS PVT LTD [Active] CIN = U27106WB1988PTC044565

Company & Directors' Information:- M I CASTINGS PRIVATE LIMITED [Active] CIN = U74899DL1983PTC016451

Company & Directors' Information:- J P CASTINGS PVT LTD [Strike Off] CIN = U29111MP1985PTC002758

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- M K G STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066480

Company & Directors' Information:- S M S CASTINGS PVT LTD [Strike Off] CIN = U27310GJ1981PTC004660

Company & Directors' Information:- A K CASTINGS PVT LTD [Strike Off] CIN = U27310WB1981PTC034277

Company & Directors' Information:- INDIA STEEL INDUSTRIES PVT LTD [Strike Off] CIN = U28111WB1959PTC024156

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A S FORGINGS PRIVATE LIMITED [Active] CIN = U74899DL1999PTC101411

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- R B R STEEL PRIVATE LIMITED [Active] CIN = U51103PB2013PTC037791

Company & Directors' Information:- S B M FORGINGS PRIVATE LIMITED [Strike Off] CIN = U28112MH2007PTC167860

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- T. T. FORGINGS PRIVATE LIMITED [Active] CIN = U74999PN2013PTC147879

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

Company & Directors' Information:- STEEL CO PVT LTD [Strike Off] CIN = U51109WB1947PTC015981

    E/82-86 of 2009 in-Original No. 16 of 2008 & Final Order No. 20244-20248 of 2019

    Decided On, 08 March 2019

    At, Customs Excise amp Service Tax Appellate Tribunal South Zonal Bench At Bangalore

    By, THE HONOURABLE MR. S.S GARG
    By, JUDICIAL MEMBER & THE HONOURABLE MR. C. J. MATHEW
    By, TECHNICAL MEMBER

    For the Appellants: Jaikumar, Swamy Associates, Advocates. For the Respondent: Madhup Sharan, AR.



Judgment Text

C.J. Mathew, Technical Member.

1. These appeals of M/s Bhuwalka Steel Industries Pvt Ltd and four others assail order-in-original no. 16/2008 dated 31st October 2008 of Commissioner of Central Excise, Bangalore-I which has confirmed duty liability of Rs.7,71,73,608/- under section 11A of Central Excise Act, 1944, along with applicable interest and imposed penalties of like amount at the section 11AB of Central Excise Act, 1944, besides imposing penalties against the company as well as other individuals under rule 25 and rule 26 of Central Excise Rules, 2002.

2. Proceedings were initiated against the Kolar Unit of the appellant’s company who were in the business of manufacture of ‘MS ingots’ that were entirely cleared to their re-rolling unit at Whitefield. The case against the assessee was that, following the termination of their assessment under computed levy scheme, in which they had claimed power consumption of 500 units of per metric tonne of ingot manufactured, the electricity consumption between 2002 and 2007 were much beyond the possible threshold of over 700 units per tonne. The impugned order justified the computation of consequential differential duty on the removal of ‘steel ingots’, allegedly manufactured in addition by use of power so concealed, with reference to absence of registers for inward and outward movement, the weighment slips, recovered during the search, indicating use of transport facilities and the undisputable expenditure on electrical energy.

3. Challenging these findings, Learned Counsel for the appellants submits that there is no dispute that the goods allegedly manufactured by them are also cleared to Whitefield and that, even so, valuation could only take recourse to rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. According to him, the quantum of power consumed did not make allowance for the utilization of ‘diesel generating sets’, that the nature of scrap could alter the power required, the need for energy to restart consumed energy at different efficiency, that the furnace efficiency is impacted by continuous use and that the norms of the survey report of National Institute of Secondary Steel Technology clarifies that no benchmark could be insisted on in the absence of any international data pertaining to induction furnace of 0.5 to 8 T capacity, that theoretically 400 KWh/T of power is required to melt one ton of mild steel in the induction furnace of 0.5 to 8 T capacity and to raise the temperature to 1630 C in any melting furnace. It was also pointed out that ideally, overall efficiency of an induction furnace comes to about 60% and specific power consumption rises to about 66KWh/T and that considering all practical operating parameters and conditions such as efficiency of DRI, tapping temperature, lining condition of induction furnace, yield percentage of liquid steel to solid ingot and the switching off the furnace during slag off, about 1427 KWh/T of power could be required to produce 1 MT of pencil ingots. In the said report, it is further stated that the specific power consumption goes up further depending upon negative variation/deviation of factors from ideal furnace operating conditions/parameters i.e., age of the furnace, suction of waste gases through APCD, quality of input power supply, frequent power cuts leading to shut down of the furnace, auxiliary equipment’s load of 15-20%, more rejection of solid ingots, bath boiling and consequent killing of the bath, period of operation per day etc. We also note that, in the said survey report, it is indicated that out of the 42 furnaces surveyed, 19 (42%) showed specific energy consumption of more than 1500 KWh/T and all with 60-90% direct reduced iron usage.

4. It is also further submitted that the decision of the Hon’ble Supreme Court, upholding the findings of the Hon’ble High Court of Allahabad, in Commissioner of Central Excise, Meerut-I v. RA Castings Pvt Ltd [2012(26) STR 262 (All.)], that excess production of ‘steel ingots’ estimated on the basis of higher electricity consumption is not sufficient proof of clandestine removal, is applicable to the present dispute. It is pointed out by Learned Counsel that it is beyond imagination that 33,000 MTS of ‘MS ingots’ could be handled clandestinely without bears a logistic nightmare and is inconsistent with the wherewithal available at the manufacturing unit. It is contended that the failure of the jurisdictional authorities to test the production efficiency, the insustainability of various allegations that relied upon recorded statements disproved during cross-examination and the fact that an audit of the enterprise under section 14A of Central Excise Act, 1944 and, more particularly, the resort to inappropriate Rules for computation of assessable value justified the setting aside of the impugned order.

5. Learned Authorized Representative relies upon the decision of the Tribunal in Bhagwati Ispat Pvt Ltd v. Commissioner of Central Excise, Bhopal [2015 (328) ELT 423 (Tri. Del.)] and in Rattan Steel Works v. Commissioner of Central Excise, Chennai [2009 (236) ELT 152 (Tri. Chennai)]. According to him, the adjudication order has not gone beyond the submissions of the assessee for ascertaining the utilization of power which was well covered by further removal of downstream goods by their own unit.

6. It was fairly conceded by Learned Counsel that the production of their downstream unit, which utilized the goods that were, admittedly, supplied to a third of its total capacity was not clear of the taint of clandestine removals which, nevertheless, had been settled under the appropriate provisions of law. He relies upon circular no. 1053/2/2017-CX dated 10th March 2017 of Central Board of Excise & Customs which directs that

‘14.9 Corroborative evidence and Cross-examination:

Where a statement is relied upon in the adjudication proceedings, it would be required to be established though the process of cross-examination, if the notice makes a request for cross-examination of the person whose statement is relied upon in the SCN. During investigation, a statement can be fortified by collection of corroborative evidence so that the corroborative evidence support the case of the department, in cases where cross-examination is not feasible or the statement is retracted during adjudication proceedings. It may be noted retracted statement may also be relied upon under given circumstances. Frivolous request for cross-examination should not be entertained such as request to cross examine officers of CERA.’

to point that failure to validate through cross-examination renders the statements, and slips, unacceptable for sustaining the case of Revenue. We take note that the adjudicating authority has not recorded any finding on the submissions relating to receipt of the alleged clandestinely removal inputs at the downstream unit or of diversion of such clandestinely manufactured goods to any other destination. It is undisputedly clear that there is neither an allegation, nor evidence, of any additions to the cost of production beyond that computed under rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 for the purpose of discharge of duty liability on the licit clearance of the goods.

7. The total cost of production over the period of dispute is not questioned. All that is doubted is the ‘unit cost’ arrived at for discharge of duty liability. The finding that the value declared by the appellant, on the basis of an inference that the cost at which the goods are procured by the downstream unit was higher than that for the clearance of the final product, was mis-declared does not appear to have a logical base as the cost of production, net of the notional profit for the purposes of valuation, is certainly below the sale price of goods manufactured by the downstream unit. The various decisions cited by Learned Authorized Representative will not stand Revenue in good stead as the circumstances of exclusive clearance to their own unit and the failure to render any finding other than that of electricity consumption in excess of that which was ascertained to be the per unit requirement compared to the assessment under the compounded levy scheme does not appe

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al to us. 8. In the absence of any finding of un-accounted expenditure on manufacture or of any evidence of illicit removal, it would appear that there is a fundamental flaw in the findings of the original authority. The adjudication order has relied upon power consumption to allege that there has been an additional production and has applied the per unit rate to this additional production without taking into consideration the indisputability of the total cost of production. In the absence of an attack on the total cost of production, the duty liability discharged on the said value for the entire period of two years is not susceptible to challenge as that which has not been paid as duties of Central Excise. 9. In the absence of any logic for calculation of additional duties, there is no justification for sustaining this impugned order. Accordingly, we set aside the impugned order and allow the appeals.
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