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TMI Blog2016 (7) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... that only part of the value of capital goods which represents the amount of duty on such capital goods, which the assessee claimed as depreciation shall not be allowed as cenvat credit. In the present case, the part of the value, which claimed as depreciation, is ₹ 16569/- only. Therefore, to this extent the appellant is not entitle for the cenvat credit, however the remaining amount, i.e. ₹ 88263/- (Rs. 104832-16569/-) is eligible as cenvat credit to the appellant for the reason that in respect of this amount of ₹ 88263/-, depreciation was not claimed. - Decided partly in favor of assessee. - Appeal No. E/1153/11-Mum - A/87205/16/SMB - Dated:- 12-4-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit in terms of Rule 4(4) of Cenvat Credits Rules, 2004. 3. Shri P. K. Shetty, Ld. Counsel appearing on behalf of the appellant, submits that the Ld. Commissioner (Appeals) has disallowed the cenvat credit of ₹ 104828/-, i.e. for the financial year 2004-05, however the 50% credit availed in the year 2005-06 was allowed. He further submits that as regard the credit availed in the year 2004-05, the appellant did not claim for the depreciation of 50%. Therefore, credit availed in 2004-05 cannot be disallowed under any circumstances. As regard remaining 50%, before availing the credit, the appellant has reduced the amount of ₹ 104828/- in their capital account. Thereafter availed the cenvat credit that means at the time of tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount of ₹ 104828/- from the capital account and then availed the cenvat credit of the said amount. The relevant Rule 4(4) reads as under: the cenvat credit in respect of capital goods shall not be allowed in respect of that part of the value of capital goods which represents the amount of duty on such capital goods which the manufacturer or provider of output service claim as depreciation under Section 32 of Income Tax Act, 1961. As per the above clear provision, it transpired that portion of excise duty, which claimed as depreciation cannot be allowed as cenvat credit also. 6.1 As per the facts of the case, the total cenvat credit of remaining 50% is ₹ 104828/-. The appellant claimed the depreciation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed the cenvat credit as depreciation on the entire remaining 50% excise duty. However in the present case, the appellant have deducted remaining 50% after claiming depreciation only for part amount from the gross block of capital account. Therefore, the facts in the aforesaid judgment are different from the facts of the present case. Hence the ratio of judgment is not applicable in this case. 7. As per my above discussion, the appellant is entitle for the cenvat credit for ₹ 104828/- in the year 2004-05 and ₹ 88263/- in the year 2005-06 accordingly the impugned order stands modified as discussed above. 8. The appeal is partly allowed in above terms. (Order pronounced in court ) - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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