(a) The appellants received capital goods during the years 2001, 2002 and 2003 and took 50% of the credit amounting to Rs. 86,113/- during the financial year in which the goods were received and took the balance credit of Rs. 86,113/- in the year following the year of the receipt of the capital goods.

(b) The appellant also claimed depreciation of the value of the goods under Income Tax Act.

(c) The original authority held that when 50% of the credit of duty was taken on capital goods in a particular year, in respect of the balance 50% of the credit, the appellant claiming depreciation from Income Tax on the value of the goods plus 50% of credit yet to be taken, was in order and claiming of such depreciation did not bar them from taking of the balance credit of the 50% in the next year.

(d) The Commissioner (Appeals) held that Rule 4 (4) prohibits the availment of Cenvat credit on which depreciation has been claimed under the Income Tax Act.

4. Learned Advocate appearing for the appella