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TMI Blog2019 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... unted to reduction of depreciation claim, but it does not make the original claim correct and accordingly the demand is sustainable. However, in this case the demand has been dropped by the lower authorities which has not been appealed against by the department. Since there is no demand, any interest on a zero demand can only be zero. Penalty - Held that:- It is for the act of taking credit wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from income tax. It was found that the appellant claimed both CENVAT Credit and depreciation on the same goods including the CENVAT component. Department felt that the appellant was ineligible for credit of capital goods in view of Rule 4(4). 3. After the show cause notice was issued to them, the appellant filed a revised income tax return with the Income Tax Department reducing the depreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee takes both depreciation on the CENVAT credit amount of the capital goods as well as claims CENVAT Credit has been dealt with and settled by the Tribunal in the case of Yee Kay Technocrat (P) Ltd. [2011(267) ELT 92 (Tri.-Del.)] and Gujarat Alkalies Chemicals Ltd. [2010(262) ELT 753 (Tri.-Ahmd)]. In both these cases it was held that once appellant claims depreciation by the Income Tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two judgments of the Tribunal on this account is that Rule 4(4) prohibits taking of credit on capital goods and simultaneously availing the depreciation on the duty element of such capital goods. The mere fact that they have availed depreciation disentitles them to credit. The subsequent filing of revised income tax return might have amounted to reduction of depreciation claim, but it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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