2011 (10) TMI 56

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..... ntant - appellant had filed revised return which resulted in reduced depreciation - in two years the revised depreciation claim is actually more than which was claimed earlier and therefore the matter is required to be reconsidered - once the revised return is filed, the demand for cenvat credit cannot be sustained - figures of depreciation claimed or to be claimed required proper explanation and .....

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..... provisions of Cenvat Credit Rules, which required that the assessee should not claim depreciation on the duty element of the capital goods, show cause notice was issued to the appellants on 24.01.2008 requiring them to show cause as to why cenvat credit of Rs. 3,69,356/- availed by them during the year 2003-04, 2005-06 and 2006-07 should not be disallowed. 2. Heard both sides. Learned counsel s .....

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..... come to a clear conclusion. In view of the above, learned counsel submits that the fact remains that the appellant had filed revised return which resulted in reduced depreciation to the extent of Rs. 35,000/- which according to him, worked out nearly to 10%, which corresponds to the depreciation along with duty element. However, he fairly agrees that in two years the revised depreciation claim is .....

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..... t to the assessee in the form of depreciation and cenvat credit would not be available. Therefore, once the revised return is filed, the demand for cenvat credit cannot be sustained. In the case of Nish Fibers the Hon'ble High Court of Gujarat in tax appeal No. 1917 of 2008 in the decision rendered on 02.12.2009, took the same view and in that case, revised return was filed after the show cause n .....

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..... nt on capital goods on which the credit has been taken 4. In view of the above discussion, impugned order is set-aside, matter is remanded to original adjudicating authority, who shall decide whether the revised depreciation claimed before the Income Tax authorities has been accepted or not, and if accepted whether the depreciation on the cenvat credit element of capital goods has been claimed o .....

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