JUDGEMENT

R. Periasami, Member (T) - (1.)THIS is an appeal filed by Revenue against Order -in -Appeal No. 3/2005 (M -IV) dt. 22.1.2005 passed by Commissioner (Appeals), Chennai.
(2.)THE brief facts of the case are that M/s. Lumax Samlip Industries Ltd., (LSIL, for short), the respondent herein are the manufacturers of "Head Lamp Assembly" and Motor vehicle parts falling under Chapter Heading 8512 and 8708 and registered with Central Excise and availed modvat credit on the inputs and capital goods used in the manufacture of excisable goods. The respondent had availed modvat credit of Rs. 24,79,790/ - on the capital goods "Injection Moulding Machine BA -4500/1900 BK". (Sl. No. 2 & 3 in RG -23 Pt -II dt. 30.6.99). During the investigation by Headquarters (Preventive), it was noticed that the respondent also claimed depreciation under Section 32 of the Income Tax Act, 1961, therefore in terms of sub -rule (8) of Rule 57R of Central Excise Rules, they are not eligible to avail the capital goods credit. Show cause notice dt. 28.5.2004 was issued to the respondent for recovery of ineligible modvat credit under Rule 57U(2) read with Section 11A along with interest and penalties under Rule 57U read with Section 11AC and Rule 173Q of Central Excise Rules. The adjudicating authority vide OIO No. 15/2004 dt. 28.9.2004 ordered recovery of credit Rs. 24,79,790/ - and also held that they are eligible to avail the said modvat credit after 30.5.2004, i.e. from the date of OIA of CIT(A) for acceptance of their application for withdrawal of depreciation by the Income Tax department. He also demanded under interest under Rule 57(4) read with Section 11AB and imposed equivalent penalty under Rule 57U(6) read with Section 11AC and also imposed penalty of Rs. 5000/ - under Rule 173Q.
Aggrieved by the said order, respondent preferred appeal and the Commissioner (Appeals) vide impugned order dt. 22.1.2005 set aside the OIO dt. 28.9.2004 and restored the credit w.e.f. 30.6.1999 i.e. from the date of availing credit and set aside both interest and both the penalties. The said OIA was reviewed by the Department and the Revenue filed appeal before Tribunal.

(3.)THE Division Bench of the Tribunal vide Final order No. 1702/2009 dt. 12.11.2009 has rejected the department's appeal. The Revenue filed ROM application and the Division Bench of the Tribunal vide MISC Order dt. 11.11.2003 allowed the ROM application and the final order dt. 12.11.09 was recalled. Para -5 of the said order is reproduced as under: -
"5. After considering the submissions of both sides, we find that at the time of passing of the final order dt. 12 -11 -2009 application for rectification of mistake/revising the return filed by assessee was not accepted by the income tax authorities and therefore the order was passed by the Tribunal in a wrong premise. It is an error on the face of record and therefore, it is necessary to rectify the mistake on final order passed by the Tribunal. Accordingly, we recall the final order dt. 12.11.2009 for hearing to rectify the mistake therein."

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