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TMI Blog2010 (3) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 per cent, it claimed benefit. Revenue denied said credit on the ground that assessee had availed 50% of cenvat credit for relevant on ground that assessee had availed 50% of Cenvat Credit and having claimed depreciation. Held that - the assessee could not claim depreciation under section 32 in respect of non-utilized cenvat credit and claim benefit for the relevant assessment year having claimed depreciation under the Income Tax Act. Accordingly, the question of law was to be answered in favour of the revenue and against the assessee. - 51 OF 2007 - - - Dated:- 12-3-2010 - K.L. MANJUNATH AND H.S. KEMP ANNA, JJ. Hariprasa for the Appellant. Smt. Vijaya Prakash, G. Sampath and S. Raghu for the Respondent. JUDGMENT K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unavailed 50 per cent, it claimed benefit. Revenue having noticed that the assessee had claimed depreciation under the Income-tax Act and also availed Cenvat credit in respect of unused 50 per cent 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 the Cenvat Credit Rules read with section 11AB of the Central Excise Act. Being aggrieved by the order of the Deputy Commissioner, the assessee filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation under section 32 of the Act in respect of unused Cenvat credit. According to her, conduct of the respondentassessee cannot be termed as in violation of rule 4 of the Cenvat Credit Rules. She alternatively contends that the proceedings initiated by the respondent were also not maintainable since the assessee had reversed the credit in view of availment of depreciation under section 32 of the 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 counsels for the parties, we have to consider when the assessee had availed Cenvat credit to an extent of 50 per cent in a particular financial year and claimed depreciation under section 32 of the Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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