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TMI Blog2005 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax return filed by them for the relevant fiscal year was assessed by the assessing authority by allowing such depreciation after deducting the Modvat credit amount. The original authority under the Central Excise Act, however, disallowed the above credit. Subsequently, the party expunged the credit in their Modvat account. They, however, challenged the said authority's order before the Commissioner (Appeals) and the latter allowed the appeal. Pursuant to favourable decision of the appellate authority, the party took recredit of the aforesaid amount in their Modvat account on 19-9-1998. After some time, it was found during the course of audit that, even after taking recredit, the assessee had not chosen to give up their claim for depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise, Mumbai [2004 (174) E.L.T. 25 (Tri. -LB)] (iii) Nagarjuna Agni Tech Ltd. v. Commissioner of Central Excise, Hyderabad [2002 (139) E.L.T. 413 (Tri.-Chennai)] (iv) Bharat Aluminium Co. Ltd. v. Commissioner of Central Excise, Raipur [2002 (148) E.L.T. 1054 (Tri.-Del.)] He has also relied on F.O. No. 22/2003 passed by the South Zonal Bench, Chennai in Appeal No. E/155/2002 (Meridian Industries Ltd. v. Commissioner of Central Excise, Coimbatore). 3. Ld. DR has endeavoured to distinguish the facts of the above cases from those of the instant case. According to him, the crucial issue is whether, on the basis of the appellants' conduct between 19-9-1998 and 23-10-1999, it could be held that they committed an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such penalty shall be equal to the amount of credit disallowed. Sub-rule (7) provided that, where the credit disallowed was reduced by the Commissioner (Appeals), the Appellate Tribunal or a Court of Law, the quantum of penalty to be imposed under sub-rule (6) shall be equal to the reduced amount of credit disallowed. This logic of the provisions has been followed by ld. Consultant in submitting that where the amount of credit disallowed is 'nil', the quantum of penalty shall also be 'nil'. This logic which is inbuilt in the above provisions is irresistible, nor has any argument capable of dislodging it been advanced before me. In the case of Nagarjuna Agni Tech. Ltd. (supra), it was held by this Bench that no penalty was liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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