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2024 (2) TMI 955 - AT - Central ExciseContravention of provisions of Rule 8(3A) of the Central Excise Rules, 2002 - liability of penalty under Rule 25 of the said Rules read with Section 11AC of the Central Excise Act, 1944 - assessee has continued to clear excisable goods availing the facility of duty payment on installment basis not resorting to consignment-wise payment of duty from Account Current - HELD THAT:- The question involved in the matter, is no more res integra and has been decided by this tribunal in the case of PRINCIPAL COMMISSIONER OF C. EX., DELHI-I VERSUS SPACE TELELINK LTD. [2017 (3) TMI 1599 - DELHI HIGH COURT], M/S. SUPERMAX PERSONAL CARE PVT. LTD. VERSUS COMMISSIONER OF CE & ST, LTU, MUMBAI [2022 (7) TMI 920 - CESTAT MUMBAI] and ANDHRA CYLINDERS PVT LTD, NALIN KHARA, MANAGING DIRECTOR VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD – I [2020 (1) TMI 189 - CESTAT HYDERABAD] where it was held that Undisputedly appellants have paid the defaulted duty for the month of January 2013, by making a debit entry in the CENVAT Account on 26.03.2013. Even if this debit was to be considered as not a valid payment of duty, then also the Appellant could not have been proceeded against for the clearances made after 26.03.2013, in terms of Rule 8 (3A). The Hon’ble Calcutta High Court in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT], categorically held that when Rule 8(3A) is declared ultra vires by the different High Courts then the Revenue cannot take a different stand contrary to the said judgements. The Hon’ble Court further declared Rule 8(3A) as invalid. This order of the Hon’ble High Court has not been stayed by the Hon’ble Supreme Court. As the Appellants have made good the shortfall in duty along with interest and there is no outstanding liability on account of shortfall in duty payments, the fact that various High Courts including the Calcutta High Court have held Rule 8(3A) of the Central Excise Rules as ultra vires, there are no merit in the Department’s plea of subjecting the appellant to any penal consequences - the impugned order imposing penalty under Rule 25 of the Central Excise Rules read with Section 11AC cannot be thus sustained and the Appeal therefore is required to be allowed. Appeal allowed.
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