ORDER
V.K. Agrawal, Member (T)
1. After staying the recovery of duty and penalty imposed on M/s. Meenakshi Vilasa Company (P) Ltd., we take up the appeal itself for disposal. We heard Shri S.D. Sankaran, learned Consultant, and Shri A. Jayachandran, learned JDR. The appellants had taken the Modvat credit on capital goods amounting to Rs. 1,34,217/- and side by side also claimed depreciation in the Income-tax Return. The learned consultant submitted that out of Rs. 1,34,217/- they are only challenging the order in respect of genset for which they had taken the Modvat credit of Rs. 1,16,037/- and also claimed depreciation in the income-tax return and in respect of other capital goods, the appellants are not challenging the order as they have claimed the depreciation from the income-tax. In view of this, we uphold the demand, which is not in challenge i.e. Rs. 1,47,217/- minus Rs. 1,16,037/-.
2. In respect of gensets, the learned consultant mentioned that they have paid the central excise duty on the genset and claimed depreciation on the cost of genset under Income-tax Act and simultaneously availed the Modvat credit in the same financial year due to oversight, but got reversed the Return in the same financial year, that the said revised Income-tax return was not produced before the Adjudicating Authority. He has also placed reliance on the decisions in the case of Shri Ghanshyam Auto Parts Pvt. Ltd. v. CCE, Aurangabad reported in 2004 (178) E.L.T. 163 (T) and Terna Shetkari S.S.K. Ltd. v. CCE, Aurangabad wherein the Modvat credit has been allowed once the appellants have demonstrated that depreciation for income-tax purpose was not claimed by them. Further, it has been stated that no penalty can be imposed on the appellants as they have filed the revised income-tax return. Reliance has been placed on the decision in the case of Alcobex Metals Ltd v. CCE, Jaipur-II . As the fact of filing of revised income-tax returns was not produced before the Adjudicating Authority at the time of the decision, the matter has to go back to the Original Authority to verify that the income-tax return has been revised and assessed accordingly. We, therefore, remand the matter regarding genset to the Original Adjudicating Authority to readjudicate the appellants eligibility to Modvat credit in respect of genset after hearing the appellants. Considering the fact that in respect of genset they have filed revised income-tax return, interest of justice will be met it. We thus reduce the amount of penalty of Rs. 5,000/-. The appeal is disposed of in these terms.
(Dictated and pronounced in open Court)