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TMI Blog2016 (5) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been disputed by the revenue. Therefore, by applying the decision of Gujarat High Court in the case of Commissioner of Central Excise & Customs vs. Saurashtra Cements Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] which was affirmed by Hon'ble Supreme Court reported in [2014 (1) TMI 264 - SUPREME COURT OF INDIA], the penalty imposed under Rule 25 ibid is set aside. With regard to imposition of penalty under Rule 15(1) of CENVAT Credit Rules, 2004, it is found that the same has arisen out of the fact that the Appellant had violated Rule 8(3A) of Central Excise Rules, 2002 as regards payment of duty. I find that the law is settled as regards demand of duty/credit restriction on account of Rule 8(3A) of Central Excise Rules, 2002. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed under Rule 25, 27 of the Central Excise Rules, 2002 and Rule 15(1) of CENVAT Credit Rules, 2004 for non-compliance of Rule 8,12 of Central Excise Rules, 2002,i.e. equal penalty for delayed payment of duty, INR 5,000/- for non-filing of returns within the prescribed time and Rule 3(1) of CENVAT Credit Rules, 2004, equal penalty for utilization of credit when the same was not available respectively. 3. The Appellant had replied to the aforesaid notice on 19.02.2013 stating that they were not in a position to file the returns as the records were fully damaged due to fire accident and Thane cyclone and that they had stopped manufacturing activity from January 2012. The original adjudicating authority, after giving a personal heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M-CX; that since Rule 8(3A) of Central Excise Rules, 2002 has been struck down, imposition of penalty under Rule 15 is incorrect as they were eligible to utilize the CENVAT Credit for payment of duty; that there was contradiction in order passed by Commissioner (Appeals) as on one hand the Commissioner (Appeals) has held that there was no intention to evade payment of duty and on other hand confirming the penalty under Rule 25 of Central Excise Rules, 2002 to the tune of INR 5,000. That the Gujarat High Court in the case of Commissioner of Central Excise Customs vs. Saurashtra Cements Ltd.2010 (260) ELT 71= 2010-TIOL-889-HC-AHM-CX has held that penalty ought not to be imposed where there has been only delay in payment of duty. 6. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said ruling has also been affirmed by the Supreme Court Commissioner v. Saurashtra Cement Ltd. 2013 (292) E.L.T. A98 (S.C.) on the count of belated filing of appeal. As rightly contended by the Appellant, the aforesaid decision of the Honble Gujarat High Court is squarely applicable to the facts of the present case and accordingly I set aside the penalty imposed under Rule 25 of Central Excise Rules, 2002. 9. With regard of imposition of penalty under Rule 15(1) of CENVAT Credit Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmaceuticals Ltd. - 2015-TIOL-1262-HC-MAD-CX and in the case of A.R. Metallurgicals Pvt. Ltd. Vs. CCE, Chennai - 2011-TIOL-201-CESTAT-MAD and subsequently this Bench s decision in the case of CCE, Chennai-II Vs. Sai Mirra Innopharm Pvt. Ltd. -2015-TIOL-2265-CESTAT-MAD and Final Order No. 41628/2015 dated 30/11/2015 in the case of Sam Turbo Industries Pvt. Ltd. Vs. CCE, Coimbatore and in the appellants case M/S Sri Sivasakthi Auto Ancillaries in the batch appeals, for the earlier period, allowed the appeal by following the ratio laid down by the Honble High Courts and Tribunals above. As seen above, since Rule 8(3A) of Central Excise Rules, 2002 has been held constitutionally invalid; I find no other reason as to why CENVAT Credit sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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