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TMI Blog2016 (9) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... amodhar, Member(Technical) Shir Nitesh, Chartered Accountant for the Appellant Shri P.S.Reddy, AR for the Respondent ORDER [ Order Per Madhu Mohan Damodhar ] 1.1 The facts in brief are that the appellants, manufacturers of Portland Cement falling under Chapter sub-heading No.25232910, had defaulted in payment of Central Excise duty beyond 30 days from the due date for the months of June 2012 and July 2012 on 06-08-2012 and 07-09-2012, instead of due dates on 06-07-2012 and 06-08-2012 respectively. Show Cause Notice dated 27-01-2014 was issued by the Additional Commissioner of Customs and Central Excise, Hyderabad-III Commissionerate, Hyderabad treating the goods valued at ₹ 2,14,33,038/- cleared on 06-08-2012, 06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted issue of imposability of penalty under Rule 25 of the Central Excise Rules 2004. Main grounds of appeal are: 3.1 The learned Commissioner ought to have seen that the default is only for one day in an instance and two days in another instance owing to severe financial difficulties and there was no intention on the part of the appellant to evade payment of duty the provisions of Rule 25 are not attracted. 3.2 The learned Commissioner even otherwise failed to give a finding as to how the judgement of the Honourable High Court of Gujarat in the case of CCE V/s Saurashtra Cements Limited reported in 2010 (260) ELT 71 (T) is not applicable. 4. Learned counsel for Appellant, Shri Nitesh reiterated the grounds of appeal. He further poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty imposed for contravention of Rule 8(3A), they are liable for penalty and the amount of penalty imposed is reduced from ₹ 5 lakhs to Rupees one lakh. The appellants challenge this penalty imposed in impugned order for contravention of Rule 8(3A). The learned counsel drew support from the judgment of the Hon ble High Court of Gujarat in the case of Indsur Global Ltd Vs UOI 2014(310) ELT 833(Guj) where the Hon ble High Court has struck down the said Rule 8(3A) as unconstitutional. In view thereof, the imposition of penalty for contravention of the said rule will not lie. The impugned order to this extent is not sustainable. No other arguments were put forward. 4. The impugned order is set aside to the extent of imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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