TMI Blog2017 (11) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate any proceedings to recover the duty and interest, much leas for imposition of penalty - Rule 8(3A) has been held to be ultra vires by various High Courts - appeal allowed - decided in favor of appellant. - E/21877/2014-SM - Final Order No. 21991/2017 - Dated:- 4-4-2017 - Shri S.S Garg, Judicial Member Shri N. Anand, Advocate For the Appellant Shri N. Jagadish, Superintendent (AR) - For the Respondent ORDER The present appeal is directed against the impugned order dated 26.02.2014 passed by the Commissioner (Appeals) whereby the Commissioner has imposed a penalty of ₹ 50,00,000/- on the appellant under Rule 25 of the Central Excise Rules 2002. Brief facts of the present case are that during the review a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 2012. However the said amount of duty has been paid by the assessee on 04.06.2013 along with interest of ₹ 1,90,443/-. From the above, it appears that the assessee have defaulted in payment of duty for the month of November 2012 inasmuch as the due date for payment of duty for the said month was 05.12.2012 and along with interest the due date was 05.01.2013 whereas the assessee have paid the dues along with interest on 04.06.2013. Thereafter a show-cause notice dated 26.08.2013 was issued and after following the due process of law by the impugned order has appropriated the amount of ₹ 1,06,05,281/- and also appropriated the interest of ₹ 10,92,035/- paid by the appellant and also imposed a penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not tenable since the provisions of Rule 8(3A) of the Central Excise Rules 2002 has been declared to be ultra vires by various High Courts in the following cases: a) Indsur Global Limited Vs. UOI - 2014 (310) ELT 833 (Guj.) b) Shreeji Surface Coatings Pvt. Ltd. V. UOI - 2015 (320) ELT 764 (Guj.) c) A.R. Metallurgicals Pvt. Ltd. V. CESTAT - 2015 (322) ELT 49 (Mad.) and by following the decision of the High Courts, Tribunal has also set aside the demand of penalty in the following cases: a) Engineering Equipment Manufacturers V. CST, 2016-TIOL-1859-CESTAT-BANG. b) Narmada Ofshore Technical Services Pvt. Ltd. V. CCE 2016-TIOL-575-CESTAT-MUM c) Auro Oil Industries V. CCE, - 2016-TIOL-434-CESTAT-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with interest voluntarily before the issue of show-cause notice. In such a situation, the appellants case is squarely covered by the decision of the Honble Karnataka High Court in the case of CC Vs. Powerica Ltd. cited supra and also CCE Vs. Adecco Flexione Workforce Solutions Ltd. cited supra and further I also find that Rule 8(3A) has been held to be ultra vires by various High Courts cited supra. Therefore, in view of these decisions, I am of the view that the impugned order is not sustainable in law and therefore I set aside the impugned order to the extent of imposing penalty under Rule 25 of the Central Excise Rules. I set aside the impugned order by allowing the appeal of the appellant with consequential relief. (Operative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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