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TMI Blog2016 (10) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... on capital goods and simultaneously availed the depreciation of the duty portion of the value of capital goods under Section 32 of the Income Tax Act, 1961 during the financial year 2007-08. 3. The Ld. Advocate for the appellants submits that the appellants have not taken any double benefit and they reversed the amount of depreciation within the Income Tax time limit. He relied upon the judgment of Hon'ble Gujarat High Court in the matter of CCE, Surat-II, Vs. Nish Fibres - 2010 (257) E.L.T. 81 (Guj.). 4. The Ld. AR reiterated the finding of Commissioner (Appeals) and pointed out that the audit was done on 06.03.2009 and the appellants filed the revised I.T. return only on 15.04.2010. He relied upon the case law of NARAYAN KRISHNA SPINNE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate. He, therefore, observed that the appellant has not availed depreciation on the value representing the amount of duty under the Income Tax Act, and therefore, he has not endorsed the view of the adjudicating authority. He has also observed that the condition for availment of modvat credit on capital goods is complied with by corrective method, even if at a later stage, and hence, the substantial benefit should not be denied. The CESTAT has also taken the same view. 11. So far as the judgment relied upon by Mr. R.J. Oza, i.e. M/s Narayan Krishna Spinners Ltd. Vs. Commissioner of C. Ex., Coimbatore (supra) is concerned, the facts are very clear. It is specifically observed therein that the depreciation claim of Rs. 40,626/- has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble benefit, i.e. under the income Tax Act as well as Central Excise Rules. Admittedly, the appellant has not claimed the benefit under the income Tax Act and the claim regarding depreciation was withdrawn by filing the revised return and that revised return has been accepted. Considering these undisputed facts, there is no reason to deny the Modvat credit to the respondent assessee. We therefore do not find any substance in this appeal and no substantial question of law arises out of the order of the Tribunal. The appeal therefore stands dismissed". 7. Besides, the adjudicating authority has given a finding that since the assessee have adjusted the amount of Cenvat Credit in their depreciation account, I do not intend to demand the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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