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TMI Blog2007 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... sides on the stay petition. 3. The relevant facts, in brief, are as follows : (a) The applicant received certain capital goods during the period Feb.' 04 to March' 04 and took credit amounting to Rs. 1,58,427/-representing 50% total eligible credit in March, 2004. (b) They filed I.T. Return for the financial year 2003-04 i.e. Assessment year 2004-05 claiming depreciation on the capital goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3,16,856/- wrongly taken on the capital goods on the ground that they have also claimed income-tax benefit by way of depreciation which has been upheld by Commissioner (Appeals). 4. The learned Authorized Representative submits that it was a mistake in claiming depreciation after taking the Cenvat credit on the capital goods; but it was not a deliberate action and has happened due to oversight; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit in the financial year ending March '04 and after filing income-tax return claiming depreciation cannot be treated as mere omission or a mistake; but for the detection by Audit, the appellant would have availed both the benefits, which is not permitted. 6. I have carefully considered the submissions from both sides. It is admitted by the appellant that it was a mistake in taking the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to disallowance of Cenvat credit. However, their action in taking the credit and thereafter claiming depreciation and again taking balance of 50% of the credit in the next year after having claimed depreciation, is clearly a violation and some penalty is warranted. A penalty of Rs. 5,000/- (Rupees Five Thousand only) imposed upon the appellant is not excessive. Therefore, while allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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