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TMI Blog2015 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been clearly brought out that respondents have not claimed depreciation in their IT return for the year 2001-02 on that part of the value representing duty on the capital goods. These facts are clearly discussed by the adjudicating authority in his order. Therefore, it is evident that appellate authority remanded the case to the original authority only on the ground that respondents have filed revised returns without any discussion. Hon'ble Karnataka High Court in the case of Suprajit Engineering Ltd. (2010 (3) TMI 414 - KARNATAKA HIGH COURT) clearly held that once the assessed claimed depreciation under Income Tax Act, he is not eligible for cenvat credit even if they have filed revised returns. - Commissioner(Appeals) orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 98,620/- in respect of simultaneous availment of cenvat credit and depreciation from Income Tax on the ground that they have produced revised IT returns for the years 2000-01 and 2001-02 and original return for 2002-03. Revenue filed appeal against that portion order of the Commissioner (Appeals) remanding the case to the lower authority on the simultaneous availment of cenvat credit and depreciation. 4. Heard Ld. AR who reiterates the grounds of appeal as well as the findings of the adjudicating authority. He states that Commissioner (Appeals) has erred in holding that respondents have filed revised IT returns whereas this fact has already been discussed by the adjudicating authority vide para 15.4 of his order. He also submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their IT return for the year 2001-02 on that part of the value representing duty on the capital goods. These facts are clearly discussed by the adjudicating authority in his order. Therefore, it is evident that appellate authority remanded the case to the original authority only on the ground that respondents have filed revised returns without any discussion. Hon'ble Karnataka High Court in the case of Suprajit Engineering Ltd. (supra) clearly held that once the assessed claimed depreciation under Income Tax Act, he is not eligible for cenvat credit even if they have filed revised returns. The relevant para-6 of the order is reproduced as under :- 6.Having heard the counsel for the parties, we have to consider when the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry has been reversed, we are of the view that the Revenue cannot levy penalty or interest. The Division Bench of the Tribunal in the case of Gujarat Alkalies Chemicals Ltd. (supra) on an identical issue has held that when an assessee claimed depreciation and also availed modvat credit, he is not eligible to avail credit. By respectfully following the above decision, I hold that Commissioner(Appeals) order to the extent of remanding to adjudicating authority on the issue of simultaneous availment of cenvat credit as well as claim of depreciation relating to the demand of ₹ 14,84,845/- is required to be set aside and the OIO is restored. 7. Revenue's Appeal is allowed. (Dictated and pronounced in open court) - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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