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TMI Blog2010 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ision that the assessee availed Cenvat Credit during second year as per Rule 4(2)(b) of Cenvat Credit Rules and further the finding of the tribunal that there is no bar under Rule 4(4) of the Rules to claim the depreciation of the balance 50% of the value of the capital goods which represents the duty under Sec. 32 of the Income Tax Act, without noticing the show cause notice, wherein it is stated that the assessee has availed the second 50% of the value of the capital goods in respect of which Cenvat Credit availed from all the units and the same is contrary to Rule-4 of said Rules?" 2. Facts leading to this case are as hereunder : Respondent-assessee is having its factory at Bommasandra Industrial Area, engaged in the manufacture of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. 4. Counsel for the Revenue contends that when the assessee had availed 50% of the Cenvat credit for the relevant assessment year and having claimed description under Sec. 32 of the Income Tax Act for the remaining un-utilized credit, it was not open for the assessee to claim credit again in subsequent assessment year. Therefore, he contends that issuance of show cause notice by the revenue and levy of interest and penalty was justified. According to him, tribunal without considering the relevant provision of law and without giving any finding has allowed the appeal. According to him, order passed by the tribunal is one without application of mind and contrary to Rule-4 of Cenvat Credit Rules. In the circumstances, he requests the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit in the subsequent year has allowed the appeal wrongly. Therefore, we are of the opinion that on account of improper interpretation of sub-rule (4) of Rule-4 of Cenvat Credit Rules, relief has been granted to the assessee by the tribunal which according to us requires to be set aside. In the circumstances, we are of the view that the assessee cannot claim depreciation under Sec.32 of the Income Tax Act in respect of non-utilized Cenvat credit and claiming benefit for the relevant assessment year having claimed depreciation under the Income Tax Act. Accordingly, we answer the question of law in favour of the Revenue and against the assessee. Counsel for the respondent contends that penalty and interest levied by the respondent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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