Customs, Excise and Gold Tribunal - Tamil Nadu
K.V. Mills vs Commissioner Of Central Excise, ... on 9 November, 2001
Equivalent citations: 2002(149)ELT796(TRI-CHENNAI)
JUDGMENT
Jeet Ram Kait
1. In this case there is a delay of one day because of the illness of the Accountant and the same is accepted and the delay is condoned.
2. The stay petition and the appeal are also taken up together as the issue has already been decided in assessee's favour by Western Region bench, Mumbai in the matter of Terna shetkari Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad reported in 2001 (46) RLT 1079 (CEGAT-Mumbai). As the matter lies in a short compass, after granting waiver of pre deposit, we take up the appeal for final disposal.
3. Ld. Consultant Shir G. Suresh, Chartered Accountant stated that initially they had claimed the depreciation, but later they did not claim the depreciation and the Modvat credit was deducted and after deducting this Modvat Credit amount, the depreciation was allowed. In this connection, they have produced a copy of the order of the proceedings of the Deputy Commissioner of Income Tax Circle-I, Coimbatore vide his order No. PA No. CT-8802-COL 95-96 dated 16.8.2001. He has also relied on the judgment rendered by the Mumbai bench in the case of Terna Shetkari Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad (supra) in which it has been held that if the revised returns excluding that part of value filed and accepted by Income Tax Department, then mere filing of return claiming depreciation on total value is not sufficient to disallow credit, particularly in view of wordings of Rule 57R (5) and the amendment to Section 43(1) of the Income Tax Act made in 1988 w.e.f. 1.4.94 unless depreciation is allowed by Income Tax Department, credit is not to be denied though claimed in the return by the assessee. In that case, the Tribunal directed the Commissioner to reconsider the provisions of Income Tax Act and accounting practice followed by the appellants and the appeal was allowed by way of remand. He has, therefore, requested that by following the ratio of the above case, their case may also be sent back for de novo consideration by the lower authorities.
4. Heard Ld. SDR who reiterates the Commissioner's order and does not have any objection if the case is sent back for remand in view of the judgment rendered by the co-ordinate bench mentioned supra.
5. After hearing both sides, we are of the considered opinion that this matter requires fresh appreciation of facts in the light of the judgment rendered by the co-ordinate bench in the case of Terna Shetkari Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad (supra) delivered by the Mumbai bench, in which it has been held that if the revised returns excluding that part of value filed and accepted by Income Tax Department, then mere filing of return claiming depreciation on total value is not sufficient to disallow credit, particularly in view of workings of Rule 57R (5) and the amendment to Section 43(1) of the Income Tax Act made in 1988 w.e.f. 1.4.94 unless depreciation is allowed by Income Tax Department, credit is not to be denied though claimed in the return by the assessee. We, therefore direct the Commissioner (Appeals) to re-consider the provisions of Income Tax Act and accounting practice followed by the appellants after giving an opportunity to the appellants to produce all the documents and evidence which they want to produce in their defence. The appeal is allowed by way of remand by setting aside the order of the Commissioner (Appeals). Ordered accordingly.
(Dictated and pronounced in open Court)