2004 (12) TMI 174 - AT - Central Excise

Summary

Issues:
Appeal against OIA No. 122/2001 dated 11-7-2001 - Availment of Modvat credit and depreciation - Disallowance of credit - Penalties imposed - Interpretation of Rule 57R(5) - Remedial action taken by the appellant.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Bangalore was against the Order-in-Original (OIA) No. 122/2001 dated 11-7-2001 issued by the Commissioner of Customs & Central Excise (Appeals), Hyderabad. The case revolved around the appellant availing Modvat credit of Capital Goods in the year 1994-1995 but not utilizing it until 1996. The appellant inadvertently claimed depreciation of 12.5% amounting to Rs. 1,55,849/- on the value of the goods in 1994-95. Subsequently, realizing the mistake, the appellant reduced the entire duty portion from the value of plant and machinery, precluding any further depreciation claim. The Revenue challenged this simultaneous availment of Modvat credit and depreciation under the Income Tax Act, citing Rule 57R(5). The adjudicating authority disallowed the credit and imposed penalties under various Central Excise Rules.

The appellant contended that the simultaneous availment was unintentional, and upon realizing the error, they took corrective measures by reversing the credit and revising the written down value in the Income Tax return for the subsequent financial year. The appellant argued against the disallowance of credit, appropriation of the reversed amount, and the heavy penalties imposed, citing relevant case laws in support of their position. On the other hand, the Department reiterated the findings of the original authority and the Commissioner (Appeals).

After hearing both parties, the Tribunal opined that the appellant should not be deprived of both benefits - Modvat credit on capital goods and depreciation under the Income Tax Act. Rule 57R(5) aims to prevent simultaneous availment of both benefits, but inadvertent errors should not lead to disallowance if remedial action is promptly taken. The Tribunal highlighted that once an option is exercised, it is not irreversible, and the benefit of Modvat credit cannot be denied solely based on claiming depreciation under the Income Tax Act. The Tribunal referenced a Final Order by the Customs & Central Excise Settlement Commission to support its interpretation. Convinced that the appellant had no intention to evade duty and the error was due to inadvertence, the Tribunal allowed the appeal with consequential relief, if any.