2004 (12) TMI 174

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....man, Member (T)]. - This is an appeal filed against the OIA No. 122/2001 dated 11-7-2001 passed by the Commissioner of Customs & Central Excise (Appeals), Hyderabad. 2. The appellants had availed Modvat credit of Capital Goods in the year 1994-1995. The total duty paid was Rs. 11,88,349/-. The credit taken was not utilized till 1996. The appellant claimed depreciation to the extent of 12.5% amo....

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....Excise Rules, 1944. A penalty of Rs. 1,00,000/- was imposed under Rule 173Q(bb) of the Central Excise Rules. Interest @ 20% was demanded on the entire credit under Rule 57U(8) of the Central Excise Rules read with section 11AA of the Central Excise Act, 1944. The appellants were not successful before the Commissioner (Appeals) and hence they have come before this Tribunal against the impugned OIA.....

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....(Appeals). 6. After hearing both the parties, we are of the considered view that the appellant cannot be denied both the benefits of availing the Modvat credit on capital goods and also the depreciation under the Income Tax. The provision in Rule 57R(5) is to ensure that an assessee does not avail simultaneously both the benefits. If by inadvertence, the appellant had availed both the benefits ....