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2016 (7) TMI 591 - CESTAT MUMBAI

2016 (7) TMI 591 - CESTAT MUMBAI - 2016 (337) E.L.T. 478 (Tri. - Mumbai) - Cenvat Credit on capital goods - simultaneous availing depreciation - The appellant in the year 2004-05 availed cenvat credit to the tune of 50%, i.e. amounting to ₹ 104828/- and remaining 50% capitalized and claim the depreciation on the total assessable value and 50% of excise duty, i.e. ₹ 104828/-. In the year 2005-06, the appellant reduced an amount of ₹ 104828/- from the capital account and availed .....

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not entitle for the cenvat credit, however the remaining amount, i.e. ₹ 88263/- (Rs. 104832-16569/-) is eligible as cenvat credit to the appellant for the reason that in respect of this amount of ₹ 88263/-, depreciation was not claimed. - Decided partly in favor of assessee. - Appeal No. E/1153/11-Mum - A/87205/16/SMB - Dated:- 12-4-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri P.K. Shetty, Advocate For the Respondent : Shri Sanjay Hasija, Supdt. (A.R.) ORDER PE .....

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and remaining 50% capitalized and claim the depreciation on the total assessable value and 50% of excise duty, i.e. ₹ 104828/-. In the year 2005-06, the appellant reduced an amount of ₹ 104828/- from the capital account and availed cenvat credit of the said amount as remaining 50%. The show cause notice was issued proposing denial of cenvat credit. The adjudicating authority on the ground that appellant is not entitle for the cenvat credit in terms of Rule 4(4) of Cenvat Credit Rules .....

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lf of the appellant, submits that the Ld. Commissioner (Appeals) has disallowed the cenvat credit of ₹ 104828/-, i.e. for the financial year 2004-05, however the 50% credit availed in the year 2005-06 was allowed. He further submits that as regard the credit availed in the year 2004-05, the appellant did not claim for the depreciation of 50%. Therefore, credit availed in 2004-05 cannot be disallowed under any circumstances. As regard remaining 50%, before availing the credit, the appellant .....

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nataka High Court judgment in the case of Commr. of Cen. Ex.& S.T., Bangalore vs. Suprajit Engineering Ltd. - 2010 (253) E.L.T. 369 (Kar) the Cenvat Credit in respect of 50% credit cannot be allowed on the ground that the assessee had claimed the benefit of depreciation under Section 32 of Income Tax Act, 1961. Therefore, the issue of the present case squarely covered by aforesaid judgment and accordingly the order of Ld. Commissioner (Appeals) liable to be upheld. 5. I have carefully consid .....

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apital goods and claimed depreciation thereon as on 31-03-2005. In the year 2005-06 the appellant before availing the credit reduced the amount of ₹ 104828/- from the capital account and then availed the cenvat credit of the said amount. The relevant Rule 4(4) reads as under: the cenvat credit in respect of capital goods shall not be allowed in respect of that part of the value of capital goods which represents the amount of duty on such capital goods which the manufacturer or provider of .....

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ar 2005-06, no depreciation was claimed thereafter, therefore against the remaining 50% of credit i.e. ₹ 104832/- the appellant taken a benefit of depreciation only for ₹ 16569/-. The cenvat credit to the extent of this amount is not admissible to the appellant. 6.2 As per the provision of depreciation under the Income Tax Act, the depreciation is allowed every year till the value of the capital goods becomes nil, that means the total amount of excise duty, if claimed as depreciation .....

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