TMI Blog2006 (11) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the balance 50% of the duty, which is not availed as Cenvat credit. As regards the second year, as per Rule 4(2)(b), the appellants availed the Cenvat credit. Cenvat Rule 4(4) makes it clear that Cenvat credit shall not be allowed in respect of that part of the value of Capital goods which represents the amount of duty on such capital goods which the manufacturer claims as depreciation u/s 32 of the Income Tax Act. Even though it appears that in the first year, the appellants had violated the rule, actually they have not violated the rules for the simple reason that they had availed depreciation only in respect of that portion of duty on which they had not taken Cenvat credit. Thus, we are of the view that there is no violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Section 11AB of the Central Excise Act. Further, he imposed penalties under Rule 13(1) of Cenvat Credit Rules. The appellant approached the Commissioner (Appeals). The Commissioner (Appeals), in the impugned orders, upheld the Orders-in-Original. The appellants are aggrieved over the impugned Orders-in-Appeal and have come before this Tribunal for relief. 3. Shri S. Raghu, the learned Advocate, appeared for the appellants and Shri K. Sambi Reddy, the learned JDR, for the Revenue. 4. The learned Advocate urged the following points :- (i) On a perusal of the Cenvat Credit Rules, it can be seen that it is clearly stipulated that the Cenvat credit is not available if an assessee claims depreciation under Section 32 of IT Act on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing case-laws were relied on :- (a) CCE v. Dewarane Macneill Co. Ltd. - 1991 (56) E.L.T. 645 (b) Refco Icematic Company v. CCE - 1999 (105) E.L.T. 247 (T) = 1998 (27) RLT 327 (c) Shakti Iron Steel Co. Ltd. - 1999 (107) E.L.T. 415 (T) = 1999 (30) RLT 641 (e) Ellora Mechanical - 1998 (98) E.L.T. 109 (f) Movika Pharmaceuticals - 1998 (27) RLT 230 (g) New Vikram Cement - 1998 (104) E.L.T. 66 (T) = 1998 (27) RLT 474 (h) Jana Jeevan Foods (P) Ltd. - 1999 (107) E.L.T. 388 (T) = 1999 (30) RLT 686 (i) Sterlite Industries (I) Ltd - 1998 (103) E.L.T. 391 (T) = 1998 (27) RLT 419 (j) Gurunanak Steel Allied Industries - 2001 (42) RLT 37 (T) (k) Aldowin Others - 2003 (156) E.L.T. 254 (T) = 2003 (56) RLT 620 (T) (l) Surat Tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n components, spares and accessories [refractories and refractory materials, moulds and dies] and goods falling under heading No. 68.02 and subheading No. 6801.10 of the First Schedule to the Tariff Act, are in the possession and use of the manufacturer of final products in such subsequent years. 4(4): The Cenvat credit in respect of capital goods shall not be allowed in respect of that part of the value of capital goods which represents the amount of duty on such capital goods, which the manufacturer claims as depreciation under Section 32 of the Income-Tax Act, 1961 (43 of 1961) 6.1 A careful reading of Rule 4 reveals that in respect of Capital Goods received in a factory at any point of time in a given financial year, only 50% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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