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TMI Blog2010 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... redit in respect of un-used 50% in the previous year, issued a show cause notice calling upon the respondent-assessee to pay duty and also to pay interest and penalty. Tribunal allowed assessee’s appeal. Held that-Tribunal Committed serious error in not considering Rule 4(4) and without considering how benefit of depreciation u/s 32 of IT Act and benefit of Cenvat Credit in subsequent year available. Thus question answered in favour of revenue. - 51 of 2007, - - - Dated:- 12-3-2010 - K.L. Manjunath and H.S. Kempanna, JJ. Shri Y. Hariprasad, Advocate, for the Appellant. Smt. Vijaya Prakash for S/Shri G. Sampath S. Raghu , Advocates, for the Respondent. [Judgment per : K.L. Manjunath, J.]. - This appeal is by the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced that the assessee claiming depreciation under the Income Tax Act and also availing Cenvat credit in respect of un-used 50% in the previous year, issued a show cause notice calling upon the respondent-assessee to pay duty and also to pay interest and penalty. A reply was sent by the assessee and thereafter jurisdictional Deputy Commissioner passed an order on 30-7-2004 stating that the assessee had availed credit amounting to Rs. 1,62,926/- and imposed penalty of Rs. 25, 000/- and demanded interest under Rule-12 of Cenvat Credit Rules R/w Sec. 11AB of the Central Excise Act. Being aggrieved by the order of the Deputy Commissioner, assessee filed an appeal before the Commissioner of appeals which appeal also came to be dismissed on 31-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be termed as violation of Rule-4 of Cenvat Credit Rules. She alternatively contends that the proceedings initiated by the respondent was also not maintainable since the assessee had reversed the credit in view of availment of depreciation under Sec. 32 of the Income Tax Act much prior to the issuance of show cause notice. In the circumstances, she requests the Court to dismiss the appeal. 6. Having heard the counsel for the parties, we have to consider when the assessee has availed Cenvat credit to an extent of 50% in a particular financial year and claim depreciation under Sec.32 of the Income Tax Act and availed Cenvat credit in respect of unused 50% in subsequent assessment year. According to us, Tribunal has committed a seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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