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TMI Blog2018 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 30-11-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri. Naveen Bindal, Advocate- for the appellant Shri. Tarun Kumar, AR- for the respondent ORDER Per: Ashok Jindal The appellant is in appeal against the impugned order wherein the duty has been demanded from the appellant by invoking the provisions of Rule 8(3A) of the Central Excise Rules, 2002. The Ld. Counsel for the appellant submits that the issue has been decided by the Hon ble High Court of Gujarat in the case of Indsur Global Ltd. reported in 2014 (310) ELT 833 (Gujarat) wherein it has been held that the provisions of Rule 8 (3A) of the Central Excise Rules, 2002 are ultra virus, therefore, relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the judgment of the Gujarat and Madras High Courts and furthermore, granted a stay of proceedings and that in these circumstances, the law declared in those judgments are no longer applicable. This submission is fallacious because in Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or authority does not deface the underlying basis of the judgment itself, i.e. its reasoning. 9. In view of the above discussion, this court holds that the impugned order and reasoning of the CESTAT does not call for interference and the court is not persuaded to take a view different from those taken 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 M/s 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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