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TMI Blog2014 (9) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Income Tax Officer for depreciation at the rate of 15% on its machinery for both years. He relied upon a decision of the Appellate Tribunal in case of Nandan Textile Ltd. rendered in Income Tax Appeal No.3166(Bom)/1977-78 decided on 8th December, 1978. The Income Tax Officer did not accept the assessee's claim for depreciation at the higher rate. He was of the view that the assessee was not doing processing work but mainly doing the work of blending and bleaching of cloth. Further, the decision in case of Nandan Textiles Pvt. Ltd. was the subject matter of pending reference before this court at the instance of department. The Assessing Officer, therefore, allowed depreciation at 10% only of the deduction and on par with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand pending adjudication by the Hon'ble Supreme Court or a Court of law would not enable the assessee to claim depreciation or the benefit. It is only the actual payment of duty that would enable him to claim the benefit. 6. Mr.Suresh Kumar submits that thereafter in the case of Oswal Agro Mills Ltd. and Anr. Vs. Assistant Collector of Central Excise Division, Ludhiana and Others (1994) 2 SCC 546 the Hon'ble Supreme Court considered a identical issue and held in favour of the revenue that furnishing of a bank guarantee is not equivalent to payment of excise duty. 7. In the present case as well we find that the Central Excise Authorities levied excise duty in relation to the fabrics and the processing charges. The levy was challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually paid by way of discharge of FDRs in favour of the Government of India. 9. After having heard Mr.Suresh Kumar and perusing with his assistance, the judgment of the Supreme Court in case of Oswal Agro Mills Ltd. and Another (supra) we are of the opinion that furnishing of a bank guarantee for whole or part of the disputed excise duty pursuant to the order of the Court is not equivalent to payment of excise duty, that is, only securing the revenue and in terms of the conditions imposed by the order of the Court. The bank guarantee cannot be straightway encashed by the revenue and until pendency of the proceedings. This was therefore not equivalent to the payment. The tribunal has rightly placed reliance on section 43B and which is enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the Tribunal was right in holding that the provisions of Section 43B are applicable in respect of Excise Duty collected on the goods which did not belong to the assessee firm and which did not form part of the processing charges charged by the assessee firm to its customers."
13. In view of the above conclusion, they would not survive. None is present before us and to seek any opinion in terms of the questions. The revenue has taken all steps to serve the respondent - assessee. In the light of the opinion and answers given by us above, the questions at the instance of revenue and the questions posed by the tribunal at the instance of the assessee would not survive. The reference is disposed of in above terms. X X X X Extracts X X X X X X X X Extracts X X X X
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