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TMI Blog2018 (5) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ndal The appellant is in appeals against the impugned order denying the Cenvat credit on capital goods availed by the appellant. 2. The facts of the case are that during the period 2008-09 the appellant availed 50% of Cenvat Credit on capital goods and also availed depreciation in terms of Section 32 of the Income Tax Act, 1961. As per Rule 4(4) of the Cenvat Credit, 2004 if an assessee has cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods as well as claimed depreciation on duty portion, therefore, they are not entitled to avail Cenvat credit. The matter was adjudicated, the demand was confirmed by denying Cenvat credit and penalty was also imposed. Against the said order, the appellant is before me. 3. The Ld. Counsel appearing on behalf of the appellant submits that in terms of the decision of Prasad Machinery Pvt. Ltd. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 6. On careful consideration of submissions made by both the sides, I find that the Ld. AR relied on the decision of Yee Kay Technocrat (P) Ltd. for denial of Cenvat credit on the premise that in the said case this Tribunal considered the decision of Prasad Machinery Pvt. Ltd. (Supra) which has been relied on by the Ld. Counsel for the appellant and held the facts are distinguishable and facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on capital goods as well as claimed depreciation under Section 32 of the Income Tax Act, 1961 and on pointing out by the Revenue have foregone the depreciation availed under Section 32 of the Income Tax Act, 1961, in that circumstances , the assessee is entitled to avail Cenvat credit. In that circumstances, I hold that the appellant is entitled to avail Cenvat credit. Therefore, the demand a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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