TMI Blog2013 (12) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Year 1996-97 - Rule 57T provides that the assessee shall not claim deprecation under Section 32 of the Income Tax, 1961 - the Income Tax authority had certified that the appellant had not claimed depreciation which would prevail against any other document, unless its genuinity is doubted. Following Honda Siel Cars (I) Ltd. Vs. CCE [2003 (9) TMI 596 - CESTAT, NEW DELHI] - Rule 57R(8) was amended retrospectively by the Finance Act, 2003 and the provisions of the rule, on the basis of which credit was denied, were deleted - in view of the amendment made in Rule 57R(8) of Rules - demand of duty along with penalty is not sustainable – Decided in favour of Assessee. - E/406/2004 - Final Order No. 40612/2013 - Dated:- 2-12-2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income Tax, Coimbatore 18 vide certificates both dated 6.1.2003 certified that the appellant has not claimed depreciation on these capital goods. They also placed the Chartered Accountant s certificate dated 25.8.1998. The learned Advocate fairly submits that the Income Tax certificate was placed before the Commissioner (Appeals). But the certificate was discarded on the basis of the ledger entry. He submits that the appellant clarified that the appellant had capitalized all such expenses which are directly attributable to bring the assets of its working condition by means of debit entries in the ledger accounts. It is his submission that when Income Tax authority had certified that the appellant had not claimed depreciation then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et value after deducting MODVAT credit. Name of the Machine MODVAT Amount Savio Autoconer Rs.4,45,735.99 IR Ring Frame Rs.1,42,487.69 Savio Autoconer M/c II Rs.4,46,199.62 This is to certify that M/s. Kwality Spinning Mills Limited, Udumalpet Road, Pollachi 642 003 has claimed depreciation for the Assessment Year 1995-96 on the following machineries, only on the net value after deducting MODVAT credit. Name of the Machine MODVAT Amount IR G5/1Ring Frame-4836 Rs.1,42,487.00 Second-hand imported Comber E7/4 Rs.3,03,135.00 5. It is seen that the Commissioner (Appeals) proceeded on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Modvat credit in respect of the capital goods was denied on the ground that the appellant has booked the amount of credit as revenue expenditure for income-tax purpose. Therefore, in view of the provisions of Rule 57R(8), credit is not admissible. 3. We find that this rule was amended retrospectively by the Finance Act, 2003 and the provisions of the rule, on the basis of which credit was denied, were deleted. This factual position is not disputed by the revenue. Hence, in view of the amendment made in Rule 57R(8) of Rules, the impugned order is set aside and the appeal is allowed. 7. In view of the above discussions, we find that the demand of duty along with penalty is not sustainable. Accordingly, the impugned orders are set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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