9911796707
TMI Blog2018 (3) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... EMBER Shri N. Jagadish, Superintendent (AR), For the Appellant Shri Raghavendra B. Hanjer, Advocate, For the Respondent Per: S.S GARG For the reasons stated in the COD application, I allow the COD application and the cross-objections are taken on record. Now, I proceed to decide the Revenue s appeal on merit. 2. The present appeal has been filed by the Revenue against the impugned order dated 05.02.2016 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has reduced the penalty to 5% of the duty demanded under Rule 25 of the Central Excise Rules. Further the Commissioner (Appeals) has held that the appeal is mainly for penalty under Rule 25 of the Central Excise Rules, 2002 as imposed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Order-in-Original imposing the penalty under Rule 25 should have been upheld by the Commissioner (Appeals). 5. On the other hand the learned counsel for the respondent submitted that the imposition of penalty in the facts and circumstances of the case is not sustainable in law. He further submitted that the erstwhile provisions of Rule 8(3A) of the Central Excise Rules has been declared as unconstitutional and hence the demand itself is not sustainable by invoking erstwhile Rule 8(3A) of the Central Excise Rules, 2002. In support of his submission, he relied upon the decision in the case of Indsur Global Ltd. Vs. Union of India reported in 2014 (310) E.L.T. 833 (Guj.) whereby the Gujarat High Court declared the provisions of Rule 8(3A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Rule 25 and 27 of the Central Excise Rules, 2002 as there was no intention to evade duty. 8. After considering the submissions of both the parties and perusal of the material on record, I find that the duty has been paid by the respondent along with interest and there was no intention to evade duty and therefore, the imposition of penalty under Rule 25 is not warranted. Therefore, I set aside the penalty imposed under Rule 25 of the Central Excise Rules, 2002. Further as far as penalty under Rule 27 is concerned, I am of the opinion that there is no infirmity in imposing the penalty under Rule 27 which is a general penalty for committing violation of a Rule and therefore, I upheld the penalty under Rule 27 and set aside the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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