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TMI Blog2009 (12) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... committed substantial error of law in allowing the benefit of Modvat credit when the same was not admissible in terms of Rule 57R(8) of Central Excise Rules, 1944 and further there was no such alternative provision under the said Rule to accept the subsequent variation on account of revised claims filed by the assessee? 2. At the time of hearing of this Tax Appeal for admission, Mr. R.J.Oza, the learned Senior Standing Counsel has proposed following two additional questions of law:- (i) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in applying decision in case of Alcobex Metals Ltd. v/s. Commissioner of C.Ex., Jaipur-II reported in 2003(161) ELT 350 (Tri.-Del.) given on the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said capital goods is claimed. The respondent assessee had filed declaration under Rule 57-T of Central Excise Rules 1944 wherein it is declared that they will not claim depreciation under Section 32 of the Income Tax Act, 1961 on the part of the value of the capital goods which represents the amount of specified duty paid on the said capital goods. 5. The Joint Commissioner, Central Excise and Customs issued show cause notice dated 17.4.2000, inter alia, calling upon the assessee to show cause as to why modvat credit amounting to Rs.5,10,663/-wrongly availed under modvat scheme for capital goods should not be recovered from the assessee under proviso to Rule 57U(2) of Central Excise Rules, 1944. The said show cause notice was adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x., Coimbatore2005(192) E.L.T. 490. He has however, invited our attention to subsequent decision of Chennai Tribunal in C.C.E., Coimbatore v/s. Veejay Lakshmi Engineering Works Ltd. - 2009 (238) E.L.T. 462 (Tri. Chennai). On the basis of these decisions, he has submitted that the question of law does arise out of the order of the CESTAT and the appeal should be admitted. 9. We have considered the submissions made by Mr. R.J.Oza, the learned Senior Standing Counsel and perused the order under appeal as well as all the three decisions of the Tribunals, which are referred to hereinabove. 10. The moot question for our consideration is as to whether the respondent assessee has, in fact, claimed the depreciation and whether such claim has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view in that case that the facts and circumstances are substantially different from those of Alcobex Metals Ltd. Supra). 12. It is important to note here that, in the case of C.C.E Coimbatore v/s Veejay Lakshmi Engineering Works Ltd. (supra), the Tribunal has, in terms, held that as the Respondent assessee had withdrawn the inadmissible claim for depreciation in the I.T. Return, though not immediately, by such action they absolved of the charge that they had availed the benefit of capital goods credit and claimed depreciation for the same amount simultaneously. The case of M/s Narayan Krishna Spinners Ltd. v/s. Commissioner of C.Ex., Coimbatore (supra) was relied upon by the Revenue. The Tribunal has however held that the fact of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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