Full Judgment
2. The amount of duty has been confirmed oh the ground that the assessees were not entitled to the above amount of modvat credit since they had also claimed depreciation of the value of capital goods which included excise duty element, under the Income-tax Act, thus resulting in violation of the provisions of Rule 57R(8) and 57T of the Central Excise Rules. The appellants had submitted before the lower appellate authority that they had revised their claim in 1997-1998 and had not got the benefit of depreciation; however, the lower appellate authority, on perusal of the assessment order for 1997-1998, has found that the assessment order makes no reference to the claim of depreciation and has, therefore, held that the appellants have not substantiated their claim of non-availment of the benefit of depreciation of the value of capital goods. The appellants have, however, now produced before the bench certificate dated 30.9.2004 from the Income-tax Officer, Ward-1(2), Surat, certifying that they had filed revised depreciation schedule in the return for assessment year 1997-1998, claiming depreciation on plant and machinery after deducting modvat amount of Rs. 3,08,750/-. The matter will, therefore, have to go back to the Commissioner (Appeals) for fresh decision on the entitlement of the assessees to credit, in the light of the above certificate. I, therefore, set aside the impugned order and remand the case to the Commissioner (Appeals) for de novo decision on the basis of the above certificate of the Income-tax Officer. He shall pass fresh orders within a period of three months from the receipt of this order, and after affording a reasonable opportunity to the appellants of appearing before him and explaining their case.