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2016 (8) TMI 540 - CESTAT MUMBAI

2016 (8) TMI 540 - CESTAT MUMBAI - TMI - Cenvat credit - recovery of inadmissible credit - availed simultaneous Cenvat credit and depreciation under Income Tax Act, 1961 - impermissible in terms of Rule 4(2) and Rule 4(4) of the Cenvat Credit Rules, 2001 - Held that:- Rule 4(4) of Cenvat Credit Rules 2001/2002 has a clear provision that if the depreciation is availed under Section 32 of the Income Tax Act, 1961 in respect of the duty suffered on capital goods the Cenvat Credit of the said amou .....

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rrectly raised by invoking extended period. - Decided against the appellant - Appeal No. E/1555/2006 - Order No. A/87615/16/EB - Dated:- 21-1-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri N.S.Patel, Advocate For the Respondent : Shri V.K. Kaushik, Asstt. Commr. (A.R) ORDER PER : RAMESH NAIR The appeal is directed against Order-in-Appeal No. BR/206/Th.II/2006 dt. 07.12.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone .....

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e not permitted in terms of Rule 4(2) and Rule 4(4) of the Cenvat Credit Rules, 2001. Therefore a show cause notice was issued proposing to demand and recover inadmissible credit of ₹ 1,84,369/- with interest and to impose penalty. The show cause notice was adjudicated whereby the demand, interest and penalty was confirmed. Being aggrieved by the Order-in-Original dt. 31.5.2005 the appellant filed appeal before the Commissioner (Appeals), which was rejected. Therefore the appellant is befo .....

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pellant was of the bona fide belief that when they had not taken the Cenvat Credit on balance 50% credit, they had availed the facility of depreciation under Section 32 of the Income Tax Act, 1961. Therefore there was no intention of availing wrong Cenvat Credit accordingly there is no suppression of fact or mis-declaration on the part of the appellant, hence demand is time barred. He placed reliance on the following judgments: (i) Roots Cast Private Ltd. Vs. Commissioner of C.Ex. Coimbatore-200 .....

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t had availed simultaneously the depreciation under Income Tax Act, 1961. In terms of Rule 4(4) no exception was provided. As per the provision if the depreciation under Section 32 of the Income Tax Act, 1961 is availed on the duty suffered on the capital goods, Cenvat Credit of the said duty is not admissible. Therefore the appeal is not maintainable. 5. We have carefully considered the submissions made by both the sides. We find that the fact is not under dispute in respect of Cenvat Credit of .....

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