2015 (8) TMI 899

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....ted 31/8/2009 passed by the Commissioner (Appeals), Ahmedabad is confirmed. 2. The Revenue has filed this appeal to consider the following substantial questions of law: "a. Whether a provision of fiscal statute which his procedural in nature if held un-constitutional by the Hon'ble High Court in 2014 (310) ELT 833Guj can be stric to senso applied in the facts of other case especially when the said judgement had not yet attained finality as the limitation period to file appeal was still not over? b. Whether the Tribunal was right in adjudicating the matter relying on a judgement striking down a provision of law when the said judgement was stayed for a further period to enable the department to file an appeal before the Hon'b....

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.... light of the fact that order of Hon'ble High Court of Gujarat in the case of M/s Indsur Global Ltd reported in 2014 (310) E.L.T. 833 (Guj) has not yet attained finality as the department is in the process of approaching the Hon'ble Apex Court, after being stayed upto 15.01.2015? g. Whether Hon'ble Tribunal can treat Rule8(3A) of Central Excise Rules, 2002unconstitutional and imposition of penalty under Rule 25 of the Central Excise Rules, 2002 void when the issue of constitutionality of Rule 8(3A) of Central Excise Rules, 2002 has not yet got finality in light of the fact that order of Hon'ble High Court of Gujarat in the case of M/s Indsur Global Ltd reported in 2014 (310) E.L.T.833 (Guj) has not yet attained finality a....

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....navati. It is apposite to note that the judgement of the Division Bench of this Court in case of Indsur (supra) is decided on 26-27/11/2014 i.e. almost around nine months ago. So far the department has not preferred any appeal to challenge the said decision of this Court in the Honourable Apex Court, hence in our opinion, the ratio expounded by this Court in the Indsur (supra) still holds the field. Relevant para 34 has held as under: "34. By no stretch of imagination, the restriction imposed under sub-rule (3A) of Rule 8 to the extend it requires a defaulter irrespective of its extent, nature and reason for the default to pay the excise duty without availing Cenvat credit to his account can be stated to be a reasonable restriction. It l....