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2010 (10) TMI 943 - GUJARAT HIGH COURTWhether the respondent can reverse the Cenvat credit availed on capital goods treating it as undesirable credit to claim depreciation under Section 32 of the Income Tax Act, 1962, and pay duty from PLA otherwise payable after exhausting Cenvat credit balance thereby claiming refund of the same under Notification No. 39/2001-C.E., dated 31-7-2001? Whether the option to avail Cenvat credit or claim depreciation under Section 32 of Income Tax Act, 1962 is a one time option or the assessee can choose to opt out of option once exercised? Whether in a situation where benefit of an exemption notification is being availed in which mandatory condition to avail the substantive benefit is the utilization of the Cenvat credit, can assessee at his will opt out midway to avail the benefit under Income Tax Act, 1962, thus rendering mandatory condition of exemption notification inapplicable? Whether Tribunal erred in not following its own decision, in the case of M/s. Pranam Industries Ltd. in Appeal No. E/3758/2005? Held that:- Reversal of credit before utilization amounts to not taking credit and as such it cannot be said that the assessee had violated the provisions of the subject notification. In the circumstances, the Tribunal was justified in holding that when the clearances started from the assessee’s unit there was no Cenvat credit available in its account and that there was nothing wrong in taking a decision to claim depreciation instead of Cenvat credit and reversing the same before it started clearance of goods from its factory, and as such the refund had rightly been sanctioned. For the foregoing reasons, there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, as proposed or otherwise, much less, a substantial question of law, so as to warrant interference. The appeal is, accordingly, dismissed.
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