1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.84 OF 2007 The Commissioner of Central Excise & Customs, Nasik .. Appellant. Versus M/s.Anand Pipe Industries .. Respondent. Mr.Parag A. Vyas for the Appellant. Mr.M.H. Patil for the respondent. CORAM : DR.S. RADHAKRISHNAN & CORAM : DR.S. RADHAKRISHNAN & CORAM : DR.S. RADHAKRISHNAN & J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. DATED : 3RD April, 2008 DATED : 3RD April, 2008 DATED : 3RD April, 2008 P.C. : 1. Heard learned counsel for the appellant - revenue and learned counsel for the respondent. 2. By this appeal, the appellant is seeking to raise the following substantial question of law : 1. Whether the CESTAT was justified in law in allowing Cenvat Credit on capital goods contrary to erstwhile Rule 57R(5) presently Rule 4(4) of Cenvat Credit Rule, 2002 when the assessee has claimed depreciation u/s 32 of Income Tax Act, 1961 on that part of capital goods which represents amount of duty in thier Original Income Tax Return to the Income Tax Department ? 2. Whether the CESTAT was justified in allowing Cenvat credit on the capital goods contrary to the provisions of erstwhile Rule 57R(5) presently Rule 4(4) of Cenvat Credit Rules, 2002 only on the submission of revised returns without verifying the revised return and the assessment order to 2 that effect passed by the Income Tax Department when the assessee claimed depreciation on Cenvat Credit amount in their original return ? 3. Whether on true and proper interpretation of erstwhile Rule 57R(5) present Rule 4(4) of Cenvat Credit Rules, 2002, the assessee is not entitled for Cenvat Credit on capital goods when the depreciation has been claimed by the assessee under Income Tax Act, 1961 on that part of the duty amount even though the revised Income Tax returns are filed subsequently by assessee ? 4. Whether the assessee is entitled to regularise the irregular Cenvat Credit taken on capital goods by subsequently filing Revised Income Tax Returns ? 5. Under these circumstances whether the appellate authorities have the discretion to reduce the mandatory penalty imposed equal to the duty demanded under Section 11AC of the Central Excise Act, 1944 ? 3. The learned counsel for the appellant submitted that the appellant filed revised return giving up depreciation and the same has been accepted by the Income Tax Department. Accordingly, income tax has already been paid. In view of above, no fault can be found in the order passed by the Tribunal. The Appeal is dismissed as such, with no order as to costs. DR.S. RADHAKRISHNAN, J. 3 J.P. DEVADHAR, J.