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TMI Blog2017 (4) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... n be rendered in the matter - appeal maintained - Tribunal to decide the appeal of the appellant/assesse on merits. - C.M.A.No.1149 of 2017, C.M.P.No.5692 of 2017 - - - Dated:- 10-4-2017 - Rajiv Shakdher And S. Suresh Kumar, JJ. For Appellant : Mr.G.Natarajan For Respondents : Ms.Hemalatha, JUDGMENT (Judgment of the Court was made by Rajiv Shakdher, J.) 1. On the previous date, i.e., 05.04.2017, we had, after hearing the counsel for the parties, passed the following order : 1. A perusal of the record would show that the Customs, Excise and Service Tax Appellate Tribunal (in short 'the Tribunal'), has been arrayed as respondent No.1, to the present proceedings. 1.1. In our opinion, the Tribunal/res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant's case that contrary to the provisions of Rule 4(4) of the 2004 Rules, the duty paid was capitalised, albeit, inadvertently, and depreciation under Section 32 of the Income Tax Act, 1961 (in short '1961 Act') was also availed of qua the amount of duty, which was capitalised. This aspect got reflected in the returns filed by the appellant qua Assessment Years (AYs) 2006-2007 and 2007-2008 [Previous Year (PY) 2005-2006 and 2006-2007]. 4.3. It is, in this background that a Show Cause Notice dated 15.09.2009 (in short 'SCN'), was served on the appellant, whereby, it was proposed to disallow the CENVAT Credit, availed of to the tune of ₹ 30,09,266/-. 5. The appellant avers that, upon discovery of the err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation made earlier on capital goods had been reversed. 6.4. The appellant is aggrieved by this conclusion of the Tribunal, as it is the appellant's stand that, since, the return for AY 2009-2010 (PY 2008-2009) was accepted under Section 143(1) of the 1961 Act, it could do nothing more than place on record of the Tribunal, a copy of the return with the requisite receipt. 7. To out minds, the appellant has a prima facie case and the balance of convenience is also in its favour. Furthermore, prejudice would be caused to the appellant, if, interim protection is not granted. 7.1. Therefore, till the next date of hearing, the operation of the impugned order dated 07.10.2016, is stayed. 7.2. The respondent, will file the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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