TMI Blog2018 (7) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... GARH], where it was held that the demand is under Rule 8(3A) of Central Excise Rules, 2002 is not sustainable against the appellant - demand of duty with interest set aside. Demand of Penalties u/r 25 of the Central Excise Rules - Held that:- Identical issue decided in the case of COMMISSIONER OF C. EX. & CUSTOMS VERSUS SAURASHTRA CEMENT LTD. [2010 (9) TMI 422 - GUJARAT HIGH COURT], where it was held that no intention on the part of the respondent assessee to evade any payment of duty, penalty could not be levied under Rule 25 of the Rules and for the alleged default, the penalty was restricted to ₹ 5,000/- in each matter under Rule 27 of the Rules - decided partly in favor of assessee. Appeal allowed in part. - E/12338,13840,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2109/2017-EX(DB) in Appeal No. E/60037/2013. They contend that this Tribunal has allowed the appeals even when there was stay from Hon ble Supreme Court on the judgement of Indsur Global Ltd. (supra). 3. Ld. AR for the Revenue reiterates the findings in the orders-in-appeal at Sr. No. 1 to 6 and Sr. No. 9 and 10 and grounds of appeal for appear at Ld. Advocate/Commissioner (Appeals) for the appellant in Sr. No. 7 and 8. Ld. AR also relies on the judgement of Hon ble High Court of Gujarat in the case of CCE vs. Saurashtra Cement Ltd. 2010 (260) ELT 71 (Guj.) to argue that in such cases, penalty of ₹ 5,000/- was upheld by the Hon ble High Court under Rule 27 of the CER, 2002. 4. Heard both sides and perused the record. 5. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association (1992) 3 SCC, the Supreme Court had observed as follows: while considering the effect of an interim order staying the operation of the order under challenge a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the appellate authority is quashed and the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the Gujarat, Allahabad, Punjab and Haryana and Madras High Courts, respectively. The appeals are consequently dismissed. 6. In view of the decision of the Hon ble High court of Delhi in the case of MIs Space Telelink (supra), I hold that the demand is under Rule 8(3A) of Central Excise Rules, 2002 is not sustainable against the appellant, therefore, the impugned order is set aside. 5. Following the decision in the case of R.B Industries (Supra), we set aside the impugned order and allow the appeal with consequential relief, if any. 6. By following the above judgement of this Tribunal on the identical issue, we set aside the demand of duty and interest in appeals filed by the assessee at Sr. No. 1 to 6 and Sr. No. 9, 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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