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TMI Blog2009 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... hing wrong in the unit taking a decision to claim depreciation in stead of Cenvat credit and reversing the same before they started clearance of goods from their factory. In fact the credit was taken as well as reversed in the same financial year. Under these circumstances we find that the refunds have been sanctioned correctly to the appellants - E/1014/2008 - A/681/2009-WZB/AHD, - Dated:- 18-3-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Anand Nainavati, Cons., for the Appellant. Ms. M.I.J. Micheal, Jt. CDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - The appellants are a unit located in Kutch District of Gujarat and are availing exemption under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first utilized the credit balance of Rs. 2,68,08,644/- for payment of duty on finished goods and having failed to do so the appellants have claimed excess refund of Rs. 2,68,08,644/- in cash from the department. 5. The proceedings culminated into the order upholding the stand of the department that appellants were not eligible for the refund sanctioned to them. Hence the appeal. 6. The learned counsel, Shri Anand Nainawati, on behalf of the appellants submitted the following points. "6. The short issue involved in the present appeal is as to whether the Appellants can be compelled to avail credit of duty paid on capital goods on which they have claimed Depreciation under Section 32 of the Income-tax Act, 1962. 7. Rule 4(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discretion of the appellants. The department cannot force the appellants to take credit which otherwise is not admissible to them under law. Hence, no duty is recoverable from the Appellants and no penalty is imposable. 10. In any case, the demands are also time-barred since the department was aware of all facts inasmuch as the entire proceedings have been initiated based on the ER-1 returns filed by the Appellants." 7. The learned J.C.D.R., on behalf of Revenue drew our attention to the order-in-original and submitted that a closing balance of Rs. 2,68,08,644/- was available on the last day of December 2004 and the appellants should have utilised this for payment of duty on clearances made by them during the period from December 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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