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TMI Blog2012 (11) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajit Bharihoke And Rakesh Kumar, JJ. Appellant Rep by: Shri Jaitin Mahahan, Adv. Respondent Rep by: Shri N Pathak, AR Per: Ajit Bharihoke: The appellant are manufacturer of confectionary on job work basis for M/s Parle Products Pvt. Ltd. They had received capital goods from M/s Parle Products Pvt. Ltd. under a rent agreement. The appellant during the period April 2008 to August, 2008, took cenvat credit of Rs.33,44,067/- in respect of capital goods received from M/s Parle Products Pvt. Ltd. on rent basis. The Department was of the view that since these capital goods have not been acquired by the appellant from a financing company under a lease or hire purchase or loan agreement, they are not eligible for capital good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ludhiana vs. Bright Brothers Ltd. - 2009 "(236) ELT 660 (P H) and also the judgment of the Tribunal in the matter of leamak Healthcare Pvt. Ltd. vs. C.CE.., Ahmedabad - 2010 (259) ELT 554 (Tri-Ahmd.). On the strength of above judgments and the agreement referred to above, he submitted that the appellant have a strong prima facie case. As such, he urged that condition of pre-deposit of cenvat credit demand interest and penalty may be waived. 4. Shri N. Pathak, learned A.R. for Revenue on the contrary has argued in support of the impugned order and submitted that the agreement referred to by the learned Counsel for the appellant is neither a lease agreement nor it is in agreement between the appellant and a finance company. Thus, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer even if the capital goods are acquired by him on lease and hire purchase or loan agreement from the finance company. Under Rule 4(4), when an assessee has taken depreciation under Section 32 of Income Tax Act 1961 in respect of some capital goods purchased by him, for the entire value of the capital goods including the portion representing central excise duties/additional customs duty, he would not be eligible for cenvat credit in respect of those capital goods. 7. We have carefully perused the agreement between the appellant and the principal manufacturer referred to by the learned counsel for the appellant which reads thus: (i) It has been decided that Mound Trading Co. Pvt. Ltd. would work as job worker for manufacturer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cenvat credit of central excise duty paid on the raw materials, packing materials as well as capital goods. Further, while on perusal of the Rule 4(4) of Cenvat Credit it is evident that Cenvat Credit is not admissible to the manufacturer who has claimed depreciation under Section 32 of Income Tax Act, 1961 on full value of capital goods including central excise duty, Shri Mahajan, learned Counsel for the appellant, when asked whether M/s Parle Products Pvt. Ltd. have availed depreciation under Section 23 of the Income Tax Act on full value of the capital goods, in question, he answered in the affirmative. From this, prima facie it appears that the agreement between the appellant has been entered into to circumvent the provisions of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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