2018 (11) TMI 351

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....on on the Excise Duty paid on the capital goods under Section 32 of the Income Tax Act, 1961 which prompted the issuance of a Show Cause Notice No. 57/2016-CE dated 05.05.2016 seeking the recovery of the above CENVAT Credit under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 1944 along with applicable interest and penalty. 2. After due process of law, the proposals contained in the above Show Cause Notice were confirmed in the Order-in-Original No. 05/2016-17 dated 30.11.2016 by demanding duty, interest and penalty, as proposed. The assessee being unsuccessful in its first appeal before the Commissioner of G.S.T. & Central Excise (Appeals), Coimbatore at Salem, has preferred this appeal. ....

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.... act which is clearly in violation of provisions of Rule 3(1) and 4(2) of the CENVAT Credit Rules, 2004. Therefore, he contended that the impugned Order does not call for any interference. 6. I have heard the rival contentions, perused the documents placed on record and have also gone through the decisions/Orders referred to during the course of hearing. 7.1 The jurisdictional High Court in the case of M/s. S.L. Lumax Ltd. Vs. Commissioner of Central Excise, Chennai-IV reported in 2016 (337) E.L.T. 368 (Mad.) had an occasion to consider the issue of availment of CENVAT/MODVAT Credit along with depreciation on machinery under the Income Tax Act. One of the questions of law admitted by the Hon'ble High Court is : "1. Whether the Hon'....

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....draw one of the two benefits. But the mistake has been explained by the assessee on the ground that their registered office was located in New Delhi and their factory was located in Tamil Nadu. The calculation of depreciation in so far as it relates to the duty component on which Modvat Credit had already been claimed, is certainly a tedious process. It does not mean that the appellant can have the licence to commit a mistake. 19. But once the mistake is detected and he filed revised returns, deprivation of the benefit of Modvat credit could only be punitive. This cannot be the object of the grant of Modvat credit. 20. As we have pointed out earlier, at least in the Order-in-Original, the Original Authority declared the entitlement of....

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....at (P) Ltd. Vs. Commissioner of C. Ex., Delhi-IV reported in 2011 (267) E.L.T. 92 (Tri. - Del.) in support of his contentions. 10. On a careful consideration of the above pleadings and also the above judgements/Orders, I note that the judgement of the jurisdictional High Court in the case of S.L. Lumax Ltd. (supra) prevails, being a binding one. However, since neither the adjudicating authority nor the Commissioner (Appeals) has given any finding on the acceptance or otherwise by the Income Tax authorities of the revised return claimed to have been filed by the appellant, I am of the considered opinion that a factual finding is required to be given. I therefore set aside the impugned Order, remand the matter back to the file of the adjud....