TMI Blog2016 (3) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... arious judgments - no duty and penalty can be imposed as observed in the case of Shreeji Surface Coatings P. Ltd. (2014 (12) TMI 656 - GUJARAT HIGH COURT ) by the Hon'ble High Court of Guajarati. Since the rule under which the entire proceedings have been initiated have been declared unconstitutional, no liability arises under the said Rules. Therefore, keeping in view the law laid down by Hon'ble High Court of Gujarat, Madras and Punjab & Haryana, set aside the impugned order by allowing the appeal of the appellant with consequential relief, if any. - Appeal No. E/2018/10-Mum - A/85459/16/SMB - Dated:- 27-1-2016 - S. S. Garg, Member (J) For the Appellant : Shri J C Patel, Adv For the Respondent : Shri S V Nair, AC(AR) ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.05.2009 was issued to the appellant alleging that the payment of part of the duty through Cenvat account during 06.06.2008 to 27.10.2008 was in contravention of Rule 8(3A). The appellant filed the reply to the show-cause notice denying the allegations and the Adjudicating Authority vide Order-in-Original dated 16.01.2009, confirming the demand for duty for the said period 06.06.2008 to 27.10.2008 in cash and imposed penalty of ₹ 32,97839/- equal to the duty under Rule 25 of Central Excise Act,2002. Aggrieved by the Order-in-Original the appellant filed the appeal before the Commissioner (Appeals) who vide Order-in-Appeal dated 18.08.2010 upheld the Order-in-Original and rejected the appeal. 3. The ld. counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra. In this situation, the show-cause notice, Order-in-Original and Order-in-Appeal which are based upon Rule 8(3A) cannot survive and are liable to be set aside as held by the Hon'ble Gujarat High Court in para 4 of the judgment in Shreeji Surface Coatings P. Ltd. (supra). In para 4, the Hon'ble High Court of Gujarat has observed as under:- 4. When the entire show-cause notice, order in original and appellate order are based on Subrule (3A) of Rule 8, the portion of which came to be struck down, such orders cannot survive. We have narrated facts only to demonstrate that the facts of the present case squarely fall within the portion of the Rule which was declared as ultra vires by the Court. It was only because the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the lower authorities. 9. It is a fact that the show-cause notice, Order-in-Original and Order-in-Appeal are based on the violation of Rule 8(3A) of the Central Excise Rules, 2002 which require the payment of duty only through account current in case of violation of payment of duty in time as prescribed in Rule 8. As submitted by the ld. Counsel for the appellant that this Rule 8(3A) has been struck down by Hon'ble High Court of Gujarat, Madras and Punjab Haryana in various judgments cited above, no duty and penalty can be imposed as observed in the case of Shreeji Surface Coatings P. Ltd. (supra) by the Hon'ble High Court of Guajarati. Since the rule under which the entire proceedings have been initiated have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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