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TMI Blog2015 (4) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue reiterates the findings of the impugned order. He submits that appellant has sought waiver of penalty imposed under Rule 26 of the Central Excise Rules, 2002 on the ground that in terms of proviso to Section 11A(2) , if the main appellant discharged the liability of Excise duty, interest and 25% penalty then other matter of other appellant should also stand concluded. He submits that appellant as co-appellant was imposed penalty of Rs. 50,000/- under Rule 26 whereas the immunity is granted to only those other persons, who have issued notice under Section 11A(1) therefore the interpretation of proviso by the appellant is misleading and no immunity under proviso to Section 11A(1A) can be granted to the appellant. He placed reliance on this Tribunal judgment in case of Commissioner of Central Excise, Raipur vs. Anand Agrawal [2013 (288) E.L.T. 90 (Tri-Del)].. 4. I have carefully considered the submissions made by Ld. A.R. and perused the records and gone through written submissions made by the appellant. 5. The issue to be decided by me is that if the main appellant against whom the excise duty demand was raised, paid the duty, interest and 25% of penalty, whether in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied or not paid or short-levied or short-paid or erroneously refunded . (1) when any duty of excise has not been levied or paid or has been short-levied or short-paid or (erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder], a Central Excise Officer may, within [one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to who cause why he should not pay the amount specified in the notice. [(1A). When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable in respect of persons 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 proceedings in respect of such person. Such person refer to the persons to whom notice has been served under sub-section 1 of section 11 and who have paid the duty along with interest and 25% of penalty within a period of 30 days of receipt of the notice. Accordingly, it has to be concluded that the proceedings do not come to an end in respect of all the persons in as much as the expression used in the said proviso is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or imposition of penalty in certain circumstances cannot be said to be a part of the proviso to sub-section 2 of section 11A so as to conclude the proceedings in respect of all noticees on payment of duty, interest and part penalty by main manufacturer. The said proviso in my views, only concludes the proceedings in respect of the persons against whom notice under section 11A is issued and who have deposited the duty in terms of provisions of sub-section 1A of section 11A. As such I agree with the Revenue that payment of short paid and non-paid duty by the main manufacturer would not result in conclusion of proceedings against all other persons on whom penalty stands proposed to be imposed in terms of Rule 26. If the legislative intent was extending immunity to all connected persons, the language used would have been simpliciter "in respect of all persons." 9. I may here discuss the Board's circular 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 case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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