2018 (7) TMI 839

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....es For Revenue (s): Shri K. J. Kinariwala ORDER Per : Mr. Devender Singh In this set of appeals, the common issue involved is the demand of duty by invoking the provisions of Rule 8 (3A) of the Central Excise Rules, 2002. The appeals at Sr. No. 1 to 6, and Sr. No. 9 and 10 have been filed by the appellants challenging the demand of duty and interest, and penalties imposed on the appellants under Rule 25 of the Central Excise Rules. Appeals at Sr. No. 7 and 8 have been filed by the Revenue challenging the orders-in- appeal of Commissioner (Appeals) dropping the demand pertaining to Rule 8 (3A) along with interest. 2. In all these cases, the appellants in appeals at Sr. No. 1 to 6 and Sr. No. 9 and 10 and Respondents in appeals....

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....B Industries in Appeal No.E/754/2011 vide Final Order No.61959/2017 dated 22.09.20 17, this Tribunal observed as follows:- "5. The said issue has been decided by the Hon 'ble High court of Gujarat in the case of Indsur Global Ltd. Reported in 2014 (310)ELT 833 (Gujarat) wherein it has been held that the provisions of Rule 8(3A) of the Central Excise Rules, are ultra virus. Although the said decision has been challenged by the Revenue before the Hon'ble Apex court and the Hon'ble Apex court has granted the stay of operation of the order of the Hon 'ble High court of Gujarat in the case of Indsur Global Ltd. (supra) the Hon 'ble High Court of Delhi in the case of MIs Space Telelink Ltd. In Appeal No. C.E.A.C No. C.No.5/2016 vide order date....

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....rity. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the Thterim order dated February 21, 1991 by the Delhi High Couit staying the operation of the order of the appellate authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the appellate authority by its order dated January 7, 1991 and it cannot be said that after February 21....

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....sition of penalty:-  "24. In view of the above discussion and legal position emerging therefrom, we have no hesitation in confirming the orders passed by the Tribunal and dismissing all these Appeals filed by the Revenue, by holding that there was no intention on the part of the respondent assessee to evade any payment of duty. It is only because of stringent financial condition, that the duty could not be paid in time and as soon as liquidity was available, duty was paid along with interest. The Tribunal has, therefore, rightly come to the conclusion that penalty could not be levied under Rule 25 of the Rules and for the alleged default, the penalty was restricted to Rs. 5,000/- in each matter under Rule 27 of the Rules. We, theref....