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TMI Blog2009 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty of excise or the additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of Cenvat credit under the Cenvat Credit Rules, 2001. 2. The appellants during their initial set up had purchased various capital goods from time to time. The appellants in their Cenvat Account for capital goods entered the details of these capital goods including details of duty debits on these capital goods. In their monthly ER-1 return for the period December 2004 filed on 10-1-2005 the appellants had shown total capital goods credit of Rs. 2,68,08,644/-. 3. The commercial production of the unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f capital goods which represents the amount of duty on such capital goods, which the manufacturer or provider of output service claims as depreciation under section 32 of the Income-tax Act, 1961 (43 of 1961). 8. In the present case, "Accounting Policies and Notes on Accounts" (Schedule 12) of audited Balance Sheet for the year 2004-2005 provides that Fixed Assets are stated at their original cost of acquisitions including taxes, freight and other incidental expenses related to acquisition and installation of the concerned assets including excise duty as no Cenvat has been claimed for excise duty paid on fixed assets. It is also reflected in the Balance Sheet that no Cenvat has been availed on capital goods. 9. Once, the Appellants have o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also fairly agreed that during the month when the first clearances took place and during the period for which refund sanctioned is proposed to be recovered, the Cenvat credit on capital goods was not in existence. She also fairly agreed that the reversal by the appellants in January 2005 would serve the purpose of the notification. 8. We have considered the submissions made by both the sides. Even though appellants had taken Cenvat credit up to December 2004, in January 2005 they had reversed full amount of Cenvat credit and opted to claim depreciation under Section 32 of Income-tax Act, 1961. At the time when clearances started from the appellants unit, there was no Cenvat credit available in their account and as pointed out by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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