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TMI Blog2018 (7) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules - Held that:- The issue of demand raised by invoking of provisions of Rule 8 (3A) ibid came up before this Tribunal in the case of M/s R. K. Machine Tools [2018 (1) TMI 39 - CESTAT CHANDIGARH], 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. 5,000/- in each matter under Rule 27 of the Rules - decided partly in favor of assessee. Appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... n-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 find that the issue of demand raised by invoking of provisions of Rule 8 (3A) ibid came up before this Tribunal in the case of M/s R. K. Machine Tools (supra), wherein this Tribunal held as follows:- "The said issue came up before this Tribunal in the case of R.B Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 and dismissed the appeals filed by the Revenue listed at Sr. No. 7 and 8. 7. As for the penalty, we find that the Hon'ble High court of Gujarat in the case of Saurashtra Cement Ltd (supra) on the identical issue has taken the following view on imposition of penalty:- "24. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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