Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2665

Method of allowing depreciation for Credit reversal on used capital goods when no method prescribed

Case:-  SIDDHARTH POLYSACKS PVT. LTD. Versus COMMISSIONER OF C.EX. & S.T.,JAIPUR-I

Citation:- 2014(303)E.L.T.575(TRI.-DEL.)

Brief facts:- The appellant are manufacturers of HDPL Bags, chargeable to Central Excise duty. The appellant during May & June, 1999 had purchased some capital goods and installed the same in the factory and took capital goods Cenvat Credit of about Rs. 10 Lakhs. The capital goods after being used were disposed of during period from April, 2009 to Jan. 2010. At the time of removal of used capital goods, the appellant were required to pay an amount as per the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004. During the period of disposal of the used capital goods, proviso to Rule 3(5) provided that if the Cenvat credit availed capital goods, are removed after being used, the manufacturer shall pay an amount equal to Cenvat credit originally taken on the said capital goods reduced by 2.5% for each quarter of a year or part thereof, from the date of taking the Cenvat credit. With effect from 27-2-2010 the proviso to Rule 3(5) of the Cenvat Credit Rules was amended. In the amended Rule 3(5), while for the used capital goods, other than Computers & Computer peripherals, the depreciation at the rate of 2.5% per quarter or part thereof was maintained, the rule, however, prescribed that the Cenvat credit originally taken should be reduced by 2.5% for each quarter or part thereof by straight line method. The Department’s contention is that since during the period prior to 27-2-2010, the method of reduction of the Cenvat credit so as to arrive at the amount payable was not prescribed and only w.e.f. 27-2-2010 that the rule specifically provided that the calculation should be by straight line method, during the period prior to 27-2-2010, the calculation of the depreciation must be by “written down method”. If the amount to be paid is calculated by reducing the Cenvat credit originally taken @ 2.5% per quarter by written down method, the quantum of reduction would be lower and the amount payable would be higher. On this basis, the Department issued a Show Cause Notice dated 10-12-2012 for recovery of Cenvat credit of Rs. 3,13,336/- along with interest and imposition of penalty. The Show Cause Notice was adjudicated by Assistant Commissioner vide Order-in-Original dated 19-9-11 by which the above demand was confirmed along with interest and penalty of equal amount was imposed. This order of the Assistant Commissioner was upheld by Commissioner (Appeals) vide Order-in-Appeal dated 2-1-2012 against which this appeal has been filed along with stay application.
 
Appellant’s contention:- Sh. Alok Kothari, learned counsel for the appellant, pleaded that the calculation of the amount payable at the time of removal of used Cenvat credit availed capital goods by straight line method was prescribed only by the amendment to Rule 3(5) w.e.f. 27-2-2010, that prior to 27-2-2010, the method of calculating depreciation was not prescribed, that from this, it cannot be presumed that during the period prior to 27-2-2010, the depreciation @ 2.5% per quarter should be calculated by written down method, and that the appellant have strong prima facie case in their favour and therefore the requirement of pre-deposit of Cenvat credit demand, interest thereon and penalty may be waived for hearing of the appeal and recovery thereof may be stayed.
 
Respondent’s contention:- Sh. A.K. Jain, ld. Jt. CDR, opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and pleaded that only with effect from 27-2-2010, the Rule specifically provided that depreciation is to be calculated at the prescribed rate by straight line method, that in view of this, during the period prior to 27-2-2010, straight line method cannot be adopted, as amending Notification No. 6/2010-C.E. (N.T.), dated 27-2-2010 cannot be given retrospective validity and therefore during period prior to 27-2-2010, depreciation must be calculated by written down method. He, therefore, pleaded that this is not a case for total waiver from requirement of pre-deposit.
 
Reasoning of Judgement:-Submissions from both the sides are considered and perused the records. There is no dispute that during the period of dispute i.e. prior to 27-2-2010 and during the period with effect from 27-2-2010, the rate of depreciation by which the Cenvat credit originally taken was to be reduced was 2.5% each quarter or part thereof. But during the period prior to 27-2-2010, method of calculation of depreciation, whether by straight line method or by written down method, was not prescribed and the straight line method was prescribed only by amending Notification No. 6/2010-CE (N.T.), dated 27-2-2010. The point of dispute is as to whether during prior to 27-2-2010, for calculating the depreciation @ 2.5% for each quarter of a year or part thereof, only written down method could be adopted. In Tribunal’s view the provisions of proviso to Rule 3(5) during the period prior to 27-2-2010 cannot be interpreted on the basis of the wordings of the proviso as the same stood w.e.f. 27-2-2010. During period prior to 27-2-2010, since no method for calculating depreciation @ 2.5% per quarter on part thereof was prescribed, the same could be calculated by adopting any method. But since it is well settled law that when two interpretation of a statutory provision are equally possible, it is the interpretation which is beneficial to the Assessee which should be adopted, The requirement of pre-deposit of Cenvat Credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed.
 
Decision:- The stay application is allowed.

Comment:- The crux of the case is that prior to 27.02.2010, as no method for calculating depreciation under Rule 3(5) was mentioned, any method can be adopted to calculate depreciation i.e., straight line or written down value method. This decision was made on the premise that when two interpretation of statutory provision is possible, the interpretation which is beneficial to the assessee shall be adopted.

Submitted by:- Somya Jain

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com