2009 (9) TMI 871

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..... . ORDER The brief facts of the case are that on 18-7-2005 officers of the Divisional Preventive group visited the factory of the appellants who are manufacturers of iron castings and availing Cenvat credit on capital goods and inputs as per Cenvat Credit Rules, 2001. It was noticed that assessees had simultaneously claimed depreciation under Section 32 of the Income-tax Act, 1961 and availed Cen .....

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..... firmed the demand by appropriation on the ground that there was no objection to such appropriation. Both assessees and Revenue filed appeals before the Commissioner (Appeals) who held that during the first year of receipt of capital goods, the assessees had availed Cenvat credit and claimed depreciation on the remaining amount including balance amount of duty in their IT returns and also availed t .....

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..... open to the Department to confirm the demand as the assessees had not contravened the provisions of Rule 4(4) by availing both Cenvat credit and Income tax depreciation for the second instalment of 50% credit which is the subject matter of the SCN and the impugned order. I, therefore, set aside the impugned order insofar as it upholds the demand of Rs. 3,63,467/- together with interest, and allow .....

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