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TMI Blog2016 (5) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act as well as revised returns in respect of the Assessment years 1999-2000 and 2000-2001 which were accepted. In so far as the Assessment year 1998-99 is concerned, the time limit for filing a revised return had already expired and the attempt of the appellant to file application for rectification under Section 154 of the Act failed up to the Supreme Court. The assessee started up with a claim for two benefits and ended up with losing both the benefits. Therefore, the question is as to whether at least after the appellant realised his mistake and had foregone one of the benefits the appellant should still be penalized? The answer to this question would be an emphatic no. It is true that only after detection by the Preventive Unit, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.C.Saravanan For The Respondent: Mr.A.P.Srinivas, JUDGMENT V.RAMASUBRAMANIAN, J This appeal is filed by the Assessee under Section 35G of the Central Excise Act, 1944, challenging the Final Order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai. 2. We have heard Mr.C.Saravanan, learned counsel for the appellant/assessee and Mr.A.P.Srinivas, learned Senior Standing Counsel for the Department. 3. The Appellant was incorporated in August, 1997 and has its registered office at New Delhi. Its factory is located in Irunkatukottai, Sriperumbudur Taluk, Kancheepuram District. 4. On 28.9.1998 and 5.10.1998, the appellant filed two Bills of Entry for the goods imported. They also filed a declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Year 2000-2001 and a show cause notice was issued on 28.5.2004. 11. In the meantime, the Commissioner (Appeals) allowed the application for rectification of mistakes, by his order dated 31.5.2004 and set aside the order of refusal dated 9.1.2004 passed by the Assessing Officer. This order of the Commissioner (Appeals) was set aside by the Tribunal which order was confirmed by the High Court and the Supreme Court. As a consequence, the Original Order of the Assessing Officer dated 9.11.2004, refusing to permit the rectification of Return under Section 154 of the Act became final. 12. In other words, the benefit that the appellant can be said to have unlawfully claimed, by way of depreciation even on the component of duty on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take note of that portion of the Order in Original which entitles the appellant to take Modvat Credit from 30.4.2005. Therefore, the assessee is on appeal before us. 16. The appeal of the Assessee was admitted by this Court on 11.12.2015 on the following substantial questions of law:- 1. Whether the Hon'ble CESTAT was justified in allowing the department's appeal ignoring the admitted fact that the appellant has fully given up the depreciation claimed under the Income Tax Act, 1961, as admitted by the income tax department in the collateral proceeding before Supreme Court for the Assessment Year 1999-2000 and in the revised returns for the subsequent year? 2. Whether the Hon'ble CESTAT was justified in concluding w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant should still be penalized? The answer to this question would be an emphatic no. It is true that only after detection by the Preventive Unit, the appellant attempted to withdraw one of the two benefits. But the mistake has been explained by the assessee on the ground that their registered office was located in New Delhi and their factory was located in Tamil Nadu. The calculation of depreciation in so far as it relates to the duty component on which Modvat Credit had already been claimed, is certainly a tedious process. It does not mean that the appellant can have the licence to commit a mistake. 19. But once the mistake is detected and he filed revised returns, deprivation of the benefit of Modvat Credit could only be punitive. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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