TaxTMI 
TaxTMI 
2011 (9) TMI 469
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....xcisable goods falling under Chapter 17 of the Central Excise Tariff Act. The assessee availed CENVAT credit on capital goods amounting to Rs. 9,73,049/- during the year 2000-01 being 50% of the duty paid on such capital goods and the balance 50% was availed in the subsequent financial year 2001-02. Scrutiny of the records of the assessee carried out by the department revealed that the assessee has also claimed depreciation for the said credit under Section 32 of the Income Tax Act, 1961. Since as per the CENVAT Credit Rules both depreciation under the Income Tax Act and CENVAT credit under the CENVAT Credit Rules could not be claimed, a show cause notice dated 06/03/2003 was issued to the assessee proposing to recover the wrong....
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....iture. Therefore, the total credit of Rs. 973049/- was available to them for utilization. Therefore, I find adequate force in the Appellants' contentions. The disallowance of credit under such circumstances is not sustainable. For the same reasons, the imposition of penalty under Section 11AC of the Central Excise Act, 1944 and to demand the interest under Section 11AB ibid is unwarranted." 2.4. The department is in appeal against the impugned order. 3. The grounds raised in the appeal is that the subsequent action on the part of the assessee of revising the income tax return does not make the act of taking credit wrongly as of no consequence. The rule does not lay down any alternative provision to allow the credit if the income....
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....vailed capital goods credit to the extent of Rs. 9,73,049/- (being 50% of the duty paid on the capital goods) during the year 2000-01. They also availed depreciation on the capital goods for the same amount and, therefore, they were not entitled for both the benefits simultaneously. The income tax return for the year 2000-01 was filed by the assessee on 31/10/2001. When the mistake was pointed out, the assessee filed a revised return on 06/08/2002 wherein they reduced their claim towards depreciation for an amount of Rs. 5,50,449/-. The balance amount was claimed as revenue expenditure for the year 2000-01. The adjudicating authority in his findings has not given any specific reason as to why he did not admit the claim of the assessee in th....
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....at he has upheld the invocation of extended period of time for demand of credit wrongly availed. Extended period of time can be invoked only when any of the elements such as fraud, collusion, suppression of facts, willful misstatement of facts or contravention of the provisions of the rules with an intent to evade payment of duty is present. For confirmation of part of the demand the appellate authority has concluded that such element(s) was present whereas for the purpose of imposition of penalty he has taken the view that these elements were not present and, therefore, no penalty is warranted. This conclusion of the appellate authority is contradictory and on this ground also the order passed by the lower appellate authority is not ....