2009 (7) TMI 979

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..... hearing both the sides I find that Modvat credit of Rs. 5,74,059/- stands denied to the appellant in respect of capital goods on the ground that they had initially availed the credit as also depreciation under the Income Tax Act. Though the appellants have pleaded before the authorities below and it also stands accepted by them that revised Income Tax Returns, without the claim of depreciation, wa .....

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..... be understood to mean availed . The Hon ble High Court further observed that only when assessee has actually availed depreciation on capital goods, he is not entitled to Modvat credit. To the similar effect are the other decisions of the Tribunal as detailed below : (1) Sri Vishnu Shankar Mill Ltd. v. CCE, Tirunelveli [2007 (208) E.L.T. 194 (Tri. - Chennai) = 2007 (5) S.T.R. 30 (Tribunal).] .....

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..... of the assessee, I consider it to be a fit case for allowing the stay petition unconditionally. I Order accordingly. In as much the law on the issue is settled, I set aside the impugned order and remand the matter to Original Adjudicating Authority for fresh decision in the light of the above judgments, after verifying the fectum of non claim of depreciation in the Income Tax Returns. Appeal also .....

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