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TMI Blog2013 (2) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Revenue though filed on different dates are being disposed of by a common order as the issue involved in all of them is identical. Vide his impugned orders, Commissioner(Appeals) has set aside penalties imposed upon the respondents in terms of provisions of Rule 26 of Central Excise Rules, 2002 on the ground that the respondents are employees, authorised signatories/directors etc. of the main manufacturing units, who have discharged duty liability along with interest and penalty equal to 25% of the duty in terms of provisions of section 11A(1A). As such by taking into account the 1st proviso of section 11A(2), he has held that if full duty demanded along with interest and penalty equal to 25% of the duty specified in the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences. In as much as in all these cases, the manufacturing units have deposited the duty along with interest and 25% of penalty, they have admitted the clandestine manufacture and clearance of the goods on their part and the respondents who are authorised representatives of the said manufacturing units, are imposable with penalty under Rule 26. 3. After hearing the other sides, I find that the moot question required to be decided in the present appeals filed by the Revenue is as to whether the respondents would get the benefit of provisions of section 11A(2) when the main manufacturer discharges his duty liability along with interest and 25% of penalty. For appreciating the said provisions the same are being reproduced below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the duty specified in the notice or the duty so accepted by such person within thirty day of the receipt of the notice.] (2) The [Central Excise Officer] shall after considering the representation, if any, made by the person on whom notice is served under sub-section (1) determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. [Provided that if such person has paid the duty in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice are served under sub-section (1) shall, without preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom notice stands issued under subsection 1 of section 11A. Notice under sub-section 1 of section 11A is issued to a person who has either not paid the duty or short paid the duty. As such notice to sub-section 1 of section 11 is issued to a manufacturing unit or a person who is required to pay duty but has not paid the duty. Notice under sub-section 1 of section 11 cannot be issued to independent persons who are authorised representatives of manufacturing units in as much as such authorised representatives are under no obligation to pay any duty of excise and as such the question of short payment or non-payment of duty does not arise. 5. Further when we analyze proviso to sub-section 2 of section 11A, the same refers to conclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to be conclusive only in respect of such person who discharges his duty liability in terms of sub-section 1A or to whom notices stands served under sub-section 1. 7. Referring to the provisions of Rule 26 of Central Excise Rules, 2002, it is seen that the same prescribes for imposition of penalty in certain circumstances. For better appreciation, the said rule is re-produced below :- "RULE 26. Penalty for certain offences. - [(1)] Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has been reason to believe are liable to confiscation under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular relied upon by Commissioner(Appeals). Para 2 of Circular No.831/08/2006-CX, dtd. 26.07.06 reads as under:- "2. Section 11A of the Central Excise Act, 194 has been amended to introduce an optional scheme for enabling voluntary payment of duty by assessees in full or in part in cases involving fraud, misstatement etc. along with interest and 25% of the duty amount as penalty within 30 days of the receipt of the show cause notice thereby dispensing with the rigours of adjudication procedure. This is an additional facility given to the Trade to settle the dispute at an early stage to reduce litigation and also aid in collection of tax dues more expeditiously. The scheme is optional and not compulsory. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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