2021 (9) TMI 1250 - AT - Central Excise

Recovery of MODVAT Credit - capital goods - depreciation on the invoice value under Section 32 of Income Tax Act - HELD THAT - It cannot be disputed that appellant have claimed depreciation of the value of the capital goods which represent the specified duty paid by them on these capital goods and have also claimed the modvat credit of the same. From the plain reading of the Rule 57 R (5) as it existed from 1994 onwards, it is clear that the pre requisite for claiming the modvat credit of the specified duty paid on capital goods, appellants should have not claimed the depreciation of that part of the value of the capital goods which represented the specified duty. Having claimed the depreciation under Section 32 of the Income Tax Act, 1962 of the value representing the specified duty, appellants are not allowed the modvat credit of that amount. Appellants have sought to justify their action by taking recourse to the accounting practice. When the rules clearly provide that amount claimed as modvat credit should not be part of the value on which depreciation is claimed appellants are barred. It is settled principle in law that when statue provides a manner for doing some things then that is the only manner in which it is to be done and all other manner of doing the same barred. Since the appellants have taken the inadmissible credit, the demand of interest in respect of the inadmissible credit is justified in terms of provisions of. It is now settled law that interest under Finance Act, 1994 is statutory liability put on the person who has unduly withheld the amounts due to government - Further when it is held that appellants by way of making misdeclaration have availed of the modvat credit which was not admissible to them the penalty imposed on them is justified. Appeal dismissed - decided against appellant.

Issues Involved:
1. Irregular availment of MODVAT credit on capital goods.
2. Non-compliance with the Tribunal’s remand directions.
3. Alleged violation of principles of natural justice.
4. Incorrect quoting of Rule in Show Cause Notice.
5. Simultaneous claim of MODVAT credit and depreciation.
6. Demand for interest and imposition of penalty.

Issue-wise Detailed Analysis:

1. Irregular Availment of MODVAT Credit on Capital Goods:
The appellant was accused of irregularly availing MODVAT credit of ?1,14,67,428 on capital goods while also claiming depreciation on the invoice value under Section 32 of the Income Tax Act. This was in contravention of Rule 57R(5) of the Central Excise Rules, 1944, which disallows such credit if depreciation is claimed. The Commissioner confirmed the demand and imposed penalties accordingly.

2. Non-compliance with the Tribunal’s Remand Directions:
The Tribunal had remanded the matter to the Commissioner with specific instructions to consider the statement of Mr. Adke in its entirety and the Chartered Accountant’s certificate. The Commissioner, in the impugned order, reviewed these documents and concluded that the appellant had indeed claimed both MODVAT credit and depreciation, thus complying with the Tribunal’s remand directions.

3. Alleged Violation of Principles of Natural Justice:
The appellant argued that the impugned order violated natural justice principles due to non-consideration of material facts and misquoting of rules. However, the Tribunal found that the Commissioner had provided a reasonable opportunity for hearing and had waited for four months for any further submissions from the appellant. Thus, the Tribunal rejected the appellant's plea of violation of natural justice.

4. Incorrect Quoting of Rule in Show Cause Notice:
The appellant contended that the Show Cause Notice cited Rule 57R(8), which came into effect in March 1997, for issues pertaining to earlier years. The Commissioner referred to Rule 57R(5) in the impugned order. The Tribunal held that both rules were in pari materia and quoting a wrong sub-rule number did not invalidate the notice, citing precedents from the Hon’ble Supreme Court and High Courts.

5. Simultaneous Claim of MODVAT Credit and Depreciation:
The appellant admitted to claiming depreciation on the invoice value of capital goods, which included the duty paid, while also availing MODVAT credit. The Tribunal emphasized that Rule 57R(5) clearly prohibits availing MODVAT credit if depreciation is claimed on the duty component. The Tribunal rejected the appellant’s justification based on accounting practices, reinforcing that statutory provisions must be strictly followed.

6. Demand for Interest and Imposition of Penalty:
The Tribunal upheld the demand for interest on the inadmissible credit, stating that interest is compensatory for withholding amounts due to the government. The penalty imposed was also justified, as the appellant’s actions constituted a misdeclaration. The Tribunal referred to the Supreme Court’s ruling in Prudential Spinner Ltd, which mandates equal penalty to the duty determined under Section 11A(2) of the Central Excise Act.

Conclusion:
The Tribunal dismissed the appeal, finding no merit in the appellant's arguments. The Commissioner’s order was upheld, confirming the disallowance of MODVAT credit, demand for interest, and imposition of penalties. The Tribunal emphasized adherence to statutory provisions and rejected the appellant’s accounting-based justifications.

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