TMI Blog2002 (1) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order per : S.S. Sekhon, Member (T)]. The appellant has taken Modvat credit on capital goods and the same was denied as it was learnt that they had also claimed depreciations on the value of capital goods under the Income Tax Returns filed by them. This was considered to be not permissible under the terms of provisions of Rule 57R(5). 2. We have heard both sides and considered the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97). The said income tax returns had been duly assessed by the income tax department on 28-11-97. As regards the claim of the appellant that they had filed a revised income tax return, the findings of the Commissioner is as follows. It has also been contended that the assessee had filed a revised return before the Income Tax Authorities on 31-3-98 and that the revised return had been assessed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated in Bangalore while the factory is located at Nanjungud and the problem was due to lack of communication between the factory and the head office. He found this explanation not to merit consideration and was least convincing and held that in Taxation, matters cannot be left at the mercy of the type of communication distortations if any, that exist between factory and its head office. Finding p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the credit to be reversed should be limited only to the amount of depreciation claimed by finding no merits of such a claim. A stringent penalty under Rules 57(U)(6) read with Rule 173Q an interest under Rule 57(U)(8) was determined. (d) We find substance in the reliance of the decision of this Tribunal in the case of Terna Shetkari Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad - [2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, we find no reason to uphold the order of the penalty and interest as arrived at by the learned Commissioner. The penalty and interest could only be determined once it is established that the alleged double benefit i.e. of Modvat credit and income tax depreciation has actually been availed by the said assessee. 3. In view of our findings we set aside the order and allow the appeal as rema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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