M/s Birla Tyres Versus Commissioner of CGST & Central Excise, BBSR I
Central Excise
2018 (7) TMI 417 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 25-5-2018
Ex. Appeal No.75340/18 – FO/75163/2018
Central Excise
SHRI P. K. CHOUDHARY, JUDICIAL MEMBER
Shri P.K. Saha, C.A. for the Appellant (s)
Shri S.S. Chattopadhyay Supdt. (A.R.) for the Respondent (s)
ORDER
Per Shri P.K. Choudhary:
The present appeal is filed by the Appellant against the Order-in-Appeal No.09/CE/BBSR-GST/2017 dated 30.10.2017 passed by the Commissioner (Appeals) of Central Excise, CGST, Customs, BBSR.
2. Briefly stated the facts of the case are that the appellant is engaged in the manufacture and sale of tyres, tubes and flaps classifiable under chapter 40 of the First schedule to the Central Excise Tariff Act, 1985. On 25.10.2005 a fire broke out in the factory of the appellant, specifically on the floor storing chemicals, causing damage to the plant and machinery and raw material. On
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ondition for admitting the appeal of the appellant. Against this stay order, the appellant filed a writ petition before the Hon'ble High Court of Orissa, which was dismissed. The appellant further filed a Special Leave Petition before the Hon'ble Supreme Court against the order of the Hon'ble High Court of Orissa. Before the matter got listed before the Hon'ble Supreme Court for hearing, the Commissioner (Appeals) passed an order dated 22.02.2011 rejecting the appeal of the appellant on the ground of non-compliance of the order of pre-deposit. On appeal, the Tribunal vide order dated 16.05.2013 remanded the matter back to the Commissioner (Appeals) since the matter had not been decided on merits. The Commissioner (Appeals) upheld the adjudication order. Aggrieved by the order of the Commissioner (Appeals), the appellant has filed this appeal before the Tribunal.
3. Heard both sides and perused the appeal records.
4. The ld. Counsel for the appellant submitted that sin
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ed that raw material amounting to Rs. 2,41,40,299/- was destroyed in the fire and the assessable value of extra stores and spares damaged in the fire was Rs. 1,84,83,828/-. Therefore, the total amount that the appellant was required to reverse was Rs. 69,56,258/- computed @16.32%. However, the appellant had reversed only Rs. 33,20,536/- and therefore, there was a short-reversal of credit of Rs. 36,65,722/-.
6. On perusal of records, I find that the appellant has relied upon the Block Addition register and Chartered Accountant's certificate which was issued based on the Block Addition register to convince the Bench that the capital goods in question were procured prior to 01.03.1994. I find that the contention of the appellant cannot be accepted based on this evidence alone, and that the appellant has failed to produce any further evidence in this regard. However, I note that the Hon'ble Supreme Court in the case of Auto Ignition Ltd. (supra) has held that the onus of proof of
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