2011 (4) TMI 1097

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... H.B. Negi, Authorised Representative (SDR) for the respondent Per: B.S.V. Murthy: A penalty of Rs. 5,00,000/- has been imposed on the appellant on the ground that they had availed CENVAT credit on the capital goods and claimed depreciation under Section 32 of the Income Tax Act simultaneously.  2. The learned counsel, on behalf of the appellant, submitted that capital goods were recei .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... a credit. The learned counsel relied upon the decision of the Tribunal in the case of Terna Shetkari SSK Ltd. vs. Commissioner of Central Excise, Aurangabad 2003 (159) ELT 777 (Tri.-Mumbai) in support of the contention that once depreciation was reversed, the appellant would be eligible for the CENVAT credit.  The learned counsel also relied upon the decision of the Tribunal in the case of Ab .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ly took a view that penalty is imposable and in that case even though the credit had been reversed before the issue of show-cause notice, the Tribunal ordered reduction of penalty but did not accept that no penalty was imposable. Further, we also note that Rule 173QA(bb) of Central Excise Rules,1944, under which penalty has been imposed, does not distinguish between willful wrong availment and bon .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X