TMI Blog2023 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bearings, Laminator Dies, Timing Belt etc. during the period April 1994 to March 1998. It is also found that the Chartered Accountant s Certificate even though placed before the Adjudicating authority, the same has not been considered. Besides, the term revenue expenditure has been substituted retrospectively by the Finance Act, 2003. The issue is no more res integra and is covered by the decisions of the Tribunal in the cases of HONDA SIEL CARS (I) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [ 2003 (9) TMI 596 - CESTAT, NEW DELHI] and NAIHATI JUTE MILLS COMPANY LTD. VERSUS COMMISSIONER OF C. EX., KOL. III [ 2015 (1) TMI 1182 - CESTAT KOLKATA] . The facts of the present case are squarely covered by the aforesaid decisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s spare parts/consumables of the machinery. While accounting for such purchase, the cost of these spare parts/consumables was debited as revenue expenditure exclusive of duty of excise. Excise duty paid by the Appellant was recorded as MODVAT Cedit receivable in the books of account. During the period from April 1994 to March 1998, the Appellant availed MODVAT Credit on various capital goods and they have neither claimed depreciation on the value representing the MODAT Credit amount under Section 32 of the Income Tax Act, 1961 nor claimed it as revenue expenditure as alleged in the Show Cause Notice. 2. The Ld.Advocate has placed reliance on the Certificate issued by the Chartered Accountant dated 24.11.1998. He further submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Ltd. [2008 (232) ELT 7 (SC)] Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. [2007 (215) ELT 489 (SC)] Excise Appeal No.125 of 2011 Commissioner of C.Ex., Bangalore v. Brindavan Beverages (P) Ltd. [2007 (213) ELT 487 (SC)] 4. It is submitted that none of the provisions quoted in the Show Cause Notice i.e., 57Q, 57R, 57S and 57T mandate that the capital goods have to be booked only as capital expenditure in the books of account of an assessee. The only bar contemplated is that if an assessee claims depreciation/revenue expenditure under Income Tax Act on the duty component paid on capital goods then such assessee would not be eligible for availing MODVAT Credit. In the instant case, the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be invoked when the Appellant was under bona fide belief that the credit has been rightly availed. 6. The Ld.Authorized Representative for the Department did not dispute the retrospective amendment and also the Certificate of Chartered Accountant produced by the Appellant. 7. Heard both sides and perused the appeal records. 8. We find that in the Chartered Accountant s Certificate it is clearly mentioned that the Appellant had neither claimed depreciation under Section 32 of the Income Tax Act, 1961 nor as revenue expenditure under any other provisions of the Income Tax Act, against the capital goods namely Ball Bearings, Laminator Dies, Timing Belt etc. during the period April 1994 to March 1998. We also find that the Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o availment of Modvat credit during the period from August, 1995 to February, 1997 on various capital goods. He submits that they have availed Modvat credit on the said capital goods in accordance with the law and under Rule 57Q of the erstwhile Central Excise Rules, 1944. He submits that the Department has proposed to deny the Modvat credit on such capital goods on the ground that in view of the sub-rule (5) of Rule 57R, the value being shown as revenue expenditure in their books of account, therefore, they would not be eligible for Modvat credit on such capital goods. He submits that this Rule has been amended twice, initially, sub-rule (5) has been amended on 23-7-1996 incorporating therein that there is a bar on availment on the value s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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