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TMI Blog2016 (5) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Standing Counsel for the Department. 3. The Appellant was incorporated in August, 1997 and has its registered office at New Delhi. Its factory is located in Irunkatukottai, Sriperumbudur Taluk, Kancheepuram District. 4. On 28.9.1998 and 5.10.1998, the appellant filed two Bills of Entry for the goods imported. They also filed a declaration on 26.11.1998 under Rule 57T(1) of the Central Excise Rules, 1944. 5. Commercial production was started in 1999 and a declaration was filed under Rule 57T(2) of the Rules. After the last date for filing of the Return under Rule 57T(10) of the Rules expired, the appellant took Modvat Credit on 30.6.1999 in respect of the import of injection molding machines. 6. Unfortunately, in the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. As a consequence, the Original Order of the Assessing Officer dated 9.11.2004, refusing to permit the rectification of Return under Section 154 of the Act became final. 12. In other words, the benefit that the appellant can be said to have unlawfully claimed, by way of depreciation even on the component of duty on which Modvat Credit had been taken, was withdrawn by the Assessee in respect of Assessment years other than 1998-99. 13. In the meantime, a show cause notice dated 28.5.2004 was issued by the Additional Commissioner of Central Excise, calling upon the appellant to show cause as to why the Modvat Credit taken by them should not be withdrawn. This show cause notice resulted in an Order in Original dated 28.9.2004, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has fully given up the depreciation claimed under the Income Tax Act, 1961, as admitted by the income tax department in the collateral proceeding before Supreme Court for the Assessment Year 1999-2000 and in the revised returns for the subsequent year? 2. Whether the Hon'ble CESTAT was justified in concluding willful mis-declaration when indeed even on the date of investigation in Feb-March 2002, the depreciation claimed had remained un-utilized which in any event was given up in the subsequent IT Returns? 3. Whether the Hon'ble CESTAT was justified in upholding the demand when indeed the appellant has given up the depreciation which remained unabsorbed in the Income Tax Return in revised Income Tax Return? 4. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omponent on which Modvat Credit had already been claimed, is certainly a tedious process. It does not mean that the appellant can have the licence to commit a mistake. 19. But once the mistake is detected and he filed revised returns, deprivation of the benefit of Modvat Credit could only be punitive. This cannot be the object of the grant of Modvat Credit. 20. As we have pointed out earlier, at least in the Order in Original, the Original Authority declared the entitlement of the appellant to Modvat Credit from 30.4.2005. Now while restoring the Order in Original, the CESTAT has modified that portion also, without there being an appeal by the Department to the Appellate Commissioner as against the Order in Original. Therefore, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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