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2010 (5) TMI 739 - AT - Central ExciseMODVAT credit - Hydrogen Peroxide Plant purchased in 1996 - GACL availed 50% of the Modvat Credit in 2000-01 and the balance 50% in 2001-02. GACL did not claim the depreciation in respect of the plant during these two years - denial of credit on the ground that GACL had in the Income Tax Returns for the years 1996-97 to 1999-2000 claimed depreciation, there was delay in filing the modvat declaration and credit was taken after four years - Held that: - the appellant claimed full depreciation which was allowed by the Income tax Authorities in the year in which the plant and machinery was purchased/installed. Once full depreciation was claimed, the appellant is barred from availing Modvat credit - Since we have held that the appellant is not eligible for the Cenvat credit, we are not considering the learned advocate’s submissions regarding availment of credit belatedly. Extended period of limitation - Held that: - The fact that no declaration was filed immediately after receipt of capital goods and the same was filed after 23 months also goes against the appellants since it would show that appellant made a conscious decision to avail depreciation and not Cenvat credit when capital goods had been received in the factory - there was suppression/misdeclaration on the part of the appellants - If the appellants deposit the full amount of Cenvat credit demanded with interest and 25% of the duty demanded within thirty days from the date of receipt of this order, they would not be required to pay 75% of the duty towards penalty under Section 11AC of Central Excise Act, 1944. As regards personal penalty of ₹ 2,00,000/- imposed on the Deputy Manager of the company, in view of the fact that the manager was acting only as an employee and this is not a case of clandestine removal and also in view of the fact that penalty has been imposed under Section 11AC of Central Excise Act, 1944 on the appellant-company, we consider that there would be no need to impose any penalty on Shri U.M. Mane, Deputy Manager. Appeal allowed - decided partly in favor of assessee.
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