TMI Blog2024 (6) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat credit and other in income tax. Accordingly, the said fact may be intimated to the income tax department. It is found that the board circular does not stipulate that in such situation the Cenvat credit should be denied - even the board circular does not suggest that in such situation the availment of Cenvat credit is incorrect illegal or in contravention to any of the provision of Cenvat Credit Rules, 2004. Therefore, in these circumstances, the department could not make out any case that the appellant is not eligible for Cenvat credit. From the decision in SHREE PANDURANG SSK LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III, [ 2017 (2) TMI 567 - CESTAT MUMBAI] , it can be seen the case of the department was the appellant have taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,659/-, which would be utilized later on. The report alleged that the excise duty on inputs procured is charged as expenditure to cost of raw material consumed , thereby resulting in dual benefit. 1.2 Accordingly, the appellant was issued a show cause notice mainly relying on the board circular No. 783/16/2004-CX dated 28.04.2004 contending that as per the clarification in the circular, the appellant is not entitled for the Cenvat Credit for the amount of Cenvat credit which was expensed out in the profit and loss account and avail the benefit of income tax. The said show cause notice has been adjudicated whereby a Cenvat credit of Rs. 83,21,659/- which was shown less in the loans and advance has been confirmed with demand of interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission made by both the sides and perusal of record, we find that the entire case for denial of Cenvat credit was made out by the department only on the basis of board circular 783/16/2001-CX dated 28.04.2004 which read as under:- Circular No. 783/16/2004-CX., dated 28-4-2004 F. No. 267/62/2003-CX. 8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Treatment of Credit balance at the Year-end - Regarding. I am directed to say that Board s attention has been drawn to treatment of CENVAT credit balance lying unutilized at the end of the financial year in Income Tax returns by the manufacturers of excisable goods which would provide possibility of availing unintended double ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind while conducting audit. 4. Receipt of the circular may be acknowledged. 5. Hindi version will follow. Form the above circular, it can be seen that the circular only give a guideline to the field formation that in case of any expenditure claimed on account of Cenvat credit, the same will amount to double benefit one in Cenvat credit and other in income tax. Accordingly, the said fact may be intimated to the income tax department. We find that the board circular does not stipulate that in such situation the Cenvat credit should be denied. Accordingly, at the most if at all department is of the view double benefit has been availed, the income tax authority should have been suitably informed and it is up to the income tax authority to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- The issue involved in the present case is that appellant availed Cenvat credit in respect of input service. The input service is related to erection, installation of capital goods. The services on which credit was taken has been capitalized and depreciation was claimed. The contention of the department is that since the value of services including service tax was capitalized, the Cenvat credit in terms of Rule 4(4) of Cenvat Credit Rules, 2004 is not admissible. 2. None appeared on behalf of the appellant however there is an adjournment letter dated 2-12-2016 placed on record by the advocate. After going through the records, I am of the view that matter can be disposed of. 3. Shri Sanjay Hasija, ld. Superintendent (AR) appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore the impugned order is set aside. Appeal is allowed. From the above decision, it can be seen the case of the department was the appellant have taken the double benefit, one by taking Cenvat credit in the Cenvat account and other by capitalizing the input service whereby they can get income tax benefit. Discarding the view of the department, the Tribunal held that when the Cenvat credit was taken in conformation to the Cenvat Credit Rules, 2004 effect given in the income tax will not affect the eligibility of the Cenvat credit. 5. As per our above discussion and findings, we are of the clear view that the appellant are entitled for the Cenvat Credit. Hence the impugned order is set aside appeal is allowed. ( Pronounced in the open cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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