TMI Blog2011 (9) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... - Shri P.R. Chandrasekharan, J. Appearance: Ms. D.M. Durando, D.C.- A.R. for the appellant Shri A.G. Kulkarni, Chartered Accountant for the respondent Per: P.R. Chandrasekharan: This is a departmental appeal directed against the Order-in-Appeal No: BPS(97)180/2004 dated 28/02/2004 passed by the Commissioner of Central Excise Customs (Appeals), Aurangabad. 2. The facts arising for consideration in this case are as follows: 2.1. M/s. Vridheshwar SSK Ltd., Ahmednagar (assessee for short) are manufacturers of excisable goods falling under Chapter 17 of the Central Excise Tariff Act. The assessee availed CENVAT credit on capital goods amounting to ₹ 9,73,049/- during the year 2000-01 being 50% of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also imposed an equivalent penalty under Rule 13 of the CENVAT Credit Rules, 2001 read with Section 11AC of the Central Excise Act. The assessee preferred an appeal before the Commissioner (Appeals), Aurangabad, who vide the impugned order held as under: 12. In the instant appeal it is seen that the Appellants in their revised return filed on 06/08/2002 deducted the amount of Cenvat credit to the tune of ₹ 550449/- from the total value of plant of machinery. The remaining amount of ₹ 422600/- appears to be on account of revenue expenditure. Therefore, the total credit of ₹ 973049/- was available to them for utilization. Therefore, I find adequate force in the Appellants' contentions. The disallowance of credit und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s revenue expenditure. 5. I have carefully considered the submissions. The allegation against the assessee in the notice issued by the department is that as per provisions of Rule 4(4) of the CENVAT Credit Rules, 2001 'CENVAT credit in respect of capital goods shall not be allowed in respect of that part of the value of the 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 (46 of 1961)'. In the instant case the assessee availed capital goods credit to the extent of ₹ 9,73,049/- (being 50% of the duty paid on the capital goods) during the year 2000-01. They also availed depreciation on the capital goods for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that ₹ 4,22,600/- is in fact revenue expenditure, is not based on any documentary evidence as rightly contended in the department's appeal. Therefore, the order of the appellate authority needs to be set aside. Further, the lower appellate authority has waived the demand for interest on the CENVAT credit wrongly taken and also imposition of penalty under Section 11AC without citing any reason or judicial pronouncement. When he is confirming the demand for CENVAT credit of ₹ 5,50,449/- wrongly taken, it is the confirmation of the fact that he has upheld the invocation of extended period of time for demand of credit wrongly availed. Extended period of time can be invoked only when any of the elements such as fraud, collusi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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