M/S KIRLOSKAR BATTERIES PVT. LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, BANGALORE

JUDGEMENT

(1.) THIS application seeks waiver and stay in respect of duty of Rs. 7,31,078/ - and equal amount of penalty. After a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of. Accordingly, after dispensing with pre -deposit, we take up the appeal for final disposal. The appeal is directed against a demand of duty arising out of denial of CENVAT credit on capital goods for the period from September 2003 to May 2005. The denial of credit is on the ground that, in respect of the said capital goods, depreciation of value was claimed under the Income Tax Act for the Financial Year 2004 -05 (Assessment Year 2005 -06). It is submitted by the learned counsel that the aforesaid amount of Rs. 7,31,078/ - was actually reduced from the value of the capital goods as on 1.4.2005 while filing Income Tax Return for the assessment year 2006 -07. In this connection, reference is made to an Annexure to the relevant Income Tax Audit Return, which indicates that an amount of Rs. 7,31,078/ - has been reduced from opening balance of plant and machinery as the same amount was claimed as CENVAT credit during the year 2004 -05 as per the Central Excise Audit Report. The learned counsel has also referred to the relevant assessment order issued by the Income Tax assessing authority under Section 143(1) of the Income Tax Act. The learned counsel further points out that these documents were not produced before the original authority and further that, though these documents were produced to the appellant authority, the same were not examined. We have heard the learned Additional Commissioner (AR) also. The short question to be considered in this case is whether the assessee claimed depreciation from the value of the capital goods in question before the Income Tax authority. The documents referred to by the learned counsel prima face shows that they reduced an amount equivalent to the CENVAT credit in question from the opening balance of plant and machinery and, accordingly, the Income Tax Return was filed. Obviously, these crucial documents were not available to the original authority and that authority was therefore handicapped in taking a decision on the dispute. It further appears that the appellate authority did not properly examine the documents produced by the assessee. In the circumstances, the matter requires to be remanded to the original authority for de novo consideration. Accordingly, we set aside the impugned order and remand the matter with a direction to the original authority to take fresh decision on all the issues after giving the assessee a reasonable opportunity of adducing evidence and of personally being heard. Needless to say that a speaking order should be passed on all the issues.