Custom, Excise & Service Tax Tribunal
M/S Excel Graphics Pvt Limited vs Commissioners Of Central Excise on 25 June, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ****
Appeal No : E/818/2012 (Arising out of OIA-SRP/93/DMN/VALSAD/2012-13 Dated 23/08/2012 passed by Commissioners of Central Excise, Customs and Service Tax-DAMAN) M/s Excel Graphics Pvt Limited : Appellant (s) Vs Commissioners of Central Excise, Customs and Service Tax-DAMAN : Respondent (s) Represented by:
For Appellant (s) : Shri Devan Parikh, Senior Advocate For Respondent (s) : Shri Govind Jha, Authorised Representative For approval and signature: Mr. H.K. Thakur, Honble Member (Technical) 1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Departmental authorities?
Yes
CORAM:
MR. H.K. THAKUR, HONBLE MEMBER (TECHNICAL)
Date of Hearing/Decision:25.06.2015
Order No. A/10925 / 2015 Dated 25.06.2015
Per: H.K. Thakur
This appeal has been filed by the appellant against O.I.A No. SRP/93/DMN/VALSAD/2012-13 Dated 23.08.2012 under which first appellate authority has upheld O.I.O No. CEX/26/DEM/Adj/GS-Addi./12-13 Dated 15.05.2012. Under this O.I.O Dated 15.05.2012 Adjudicating Authority disallowed credit of Rs. 11,73,596/- alongwith interest on the grounds that appellant cannot avail CENVAT credit as appellant has claimed depreciation of capital goods under Section 32 of the Income Tax Act, 1961. An equal amount of penalty was also imposed by the Adjudicating Authority upon the appellant under Rule 15 (2) of the Cenvat Credit Rules, 2004.
2. Shri Devan Parikh, Senior Advocate appearing on behalf of the appellant argued that depreciation claimed by the appellant was subsequently, corrected in the revised Income Tax Returns filed for the assessment years 2006-2007 to 2009-2010 and that excess depreciation was not claimed in the revised income tax returns. Learned Advocate made the Bench go through CA Certificate to the extent that appellant has debited excess credit of Rs. 11,63,724/- as a result of excess depreciation claimed. He also relied upon the following case laws to argue that once the claim for depreciation made in income tax return is reversed and a certificate to that effect is produced then net result will be that appellant has not claimed depreciation on capital goods and can avail CENVAT credit simultaneously:-
(i) Commissioner of Central Excise, Surat-I vs Utsav Silk Mills [2009 (245) E.L.T. 246 (Tri. Ahmd.)]
(ii) Terna Shetkari Sahakari Sakhar Karkhana Ltd. vs CCE, Aurangabad [2001 (138) E.L.T. 1225 (Tri. Mumbai)]
(iii) Prasad Machinery Pvt. Ltd. vs Commissioner Of Central Excise (A), Ahmedabad [2007 (218) E.L.T. 445 (Tri. Ahmd.)]
(iv) Multichem vs Commissioner of Central Excise, Vadodara [2012 (282) E.L.T. 110 (Tri. Ahmd.)]
3. Shri Govind Jha, (AR) appearing on behalf of the Revenue argued that it is clear that appellant has only filed revised income tax returns for the period 2006-2007 to 2008-2009 as mentioned in Para 6 of the O.I.A Dated 23.08.2012 passed by the first appellate authority. He strongly defended the order passed by the lower authorities.
4. As a counter to the argument made by the Learned Authorised Representative, it was submitted by Learned Senior Advocate that in the same paragraph, it is subsequently mentioned that revised income tax returns for the financial year 2010-2011 was filed under which depreciation claimed the assessment years 2006-2007 to 2009-2010 was surrendered and that this point has been subsequently certified by Chartered Accountants Certificate.
5. Heard both sides and perused the case records. The issue involved in the present proceedings is whether CENVAT credit on the capital goods is admissible to the appellant when depreciation claimed under the Income Tax Act, 1961 initially was subsequently reversed by filing revised income tax returns. It is observed from the relied upon case laws that this issue has been settled by series of case laws including order passed by this bench in the case of Commissioner of Central Excise, Surat-I vs Utsav Silk Mills [2009 (245) E.L.T. 246 (Tri. Ahmd.)] (Supra). Para 3 of this case law is reproduced below:-
3. ?I have considered the submissions. I find no reason to set aside the order of Commissioner (Appeals) since the intention of the provisions in the rules about depreciation is that the assessee should not claim benefit under Income-tax Act as well as CENVAT credit. Once the claim for depreciation made in the income-tax return is reversed and a certificate to that effect is produced, the net result is that the appellants have not claimed depreciation during the relevant period and therefore would be entitled to the credit. Accordingly appeal filed by the revenue is rejected. The cross-objections filed by the respondent also gets disposed of.
6. In view of the above settled proposition of the law the present appeal filed by the appellant is covered by the relied upon case law and is accordingly allowed with consequential relief, if any.
(Operative portion of the order pronounced in Court) (H.K. Thakur) Member (Technical) govind 2