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Commissioner of Central Excise, Pondicherry Versus Vishnu Paper Products Pvt. Ltd.

2015 (4) TMI 311 - CESTAT CHENNAI

Simultaneous availment of modvat credit as well as claiming depreciation under the Income Tax Act - lower appellate authority has remanded this aspect to the adjudicating authority for de novo adjudication - Held that:- respondents have not produced any new argument before the Commissioner (Appeals). On perusal of the adjudication order at para 15.4. the adjudicating authority has clearly brought out the facts of filing revised returns for the year 2001-02, 2001-02, 2002-03 & 2003-04. It was cle .....

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nd that respondents have filed revised returns without any discussion. Hon'ble Karnataka High Court in the case of Suprajit Engineering Ltd. (2010 (3) TMI 414 - KARNATAKA HIGH COURT) clearly held that once the assessed claimed depreciation under Income Tax Act, he is not eligible for cenvat credit even if they have filed revised returns. - Commissioner(Appeals) order to the extent of remanding to adjudicating authority on the issue of simultaneous availment of cenvat credit as well as claim .....

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for the respondent despite notice. The case was adjourned on 3.3.2014, 9.5.2014 when none appeared for the respondent. Since the appeal is an old one and the respondents are not serious in pursuing the appeal, I proceed to take up the appeal for hearing and decision on merits. 3. The brief facts of the case are that adjudicating authority confirmed the demand of ₹ 16,82,086/- as ineligible cenvat credit with interest and imposed penalty equal to the demand under Rule 13 of Cenvat Credit R .....

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for the years 2000-01 and 2001-02 and original return for 2002-03. Revenue filed appeal against that portion order of the Commissioner (Appeals) remanding the case to the lower authority on the simultaneous availment of cenvat credit and depreciation. 4. Heard Ld. AR who reiterates the grounds of appeal as well as the findings of the adjudicating authority. He states that Commissioner (Appeals) has erred in holding that respondents have filed revised IT returns whereas this fact has already been .....

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p; Chemicals Ltd. Vs CCE Vadodara-I 2010 (262) ELT 753 (Tri.-Ahmd.). 5. Respondent has not filed any written submissions. 6. The short issue arises in this appeal is simultaneous availment of modvat credit as well as claiming depreciation under the Income Tax Act. The lower appellate authority has remanded this aspect to the adjudicating authority for de novo adjudication. Revenue pleaded that there was no requirement of remanding to the lower authority only on the ground that respondent filed r .....

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n wherein it has been clearly brought out that respondents have not claimed depreciation in their IT return for the year 2001-02 on that part of the value representing duty on the capital goods. These facts are clearly discussed by the adjudicating authority in his order. Therefore, it is evident that appellate authority remanded the case to the original authority only on the ground that respondents have filed revised returns without any discussion. Hon'ble Karnataka High Court in the case o .....

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in respect of unused 50% in subsequent assessment year. According to us, Tribunal has committed a serious error in not considering sub-rule(4) of Rule-4 of Cenvat Credit Rules. Without applying its mind, without coming to the conclusion how the assessee would be entitled to avail benefit of depreciation; under Sec.32 of the Income Tax Act and also claiming benefit of Cenvat credit in the subsequent year has allowed the appeal wrongly. Therefore, we are of the opinion that on account of improper .....

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