TMI Blog2015 (4) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice is paid by both the person then against those both the persons proceedings will stand concluded, but if any other person on whom only penalty under Rule 26 of Central Excise Rules, 2002, or any other person is proposed then the proviso to Section 11A(2) is not applicable - However, considering the fact that total amount of duty confirmed is ₹ 2,79,803/- and also on the fact that entire duty, interest and 25% of penalty has been paid by the main appellant. I am of the view that the personal penalty of ₹ 50,000/- imposed on the appellant is higher side, therefore I reduce penalty of ₹ 50,000/- to ₹ 25,000 - Following decision of Commissioner of Central Excise, Raipur vs. Anand Agrawal [2013 (2) TMI 569 - CESTAT NEW DELHI] - Decided partly in favour of assessee. - Appeal No. E/88235/13-MUM - - - Dated:- 15-4-2015 - Ramesh Nair, Member (J),J. For the Appellant : None For the Respondent : Shri Ashutosh Nath, Asst Commissioner (AR) ORDER Per: Ramesh Nair: This appeal is directed against Order-in-Appeal No. AV.(199-200) 180-181/2013 dtd. 18/7/2013 passed by the Commissioner of Central Excise Customs (Appeals), Aurangabad, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the matter stated therein: From the aforesaid proviso, it is very clear that the immunity provided under the proviso is available to only those persons to whom the notice is issued under Section 11A(1A). In the present case penalty on the appellant was proposed in the notice and imposed in the impugned order under Rule 26 of Central Excise Rules, 2002. Therefore the appellant is not covered under the category of the other persons as mentioned, under the proviso. Therefore in my view the immunity provided under the proviso is not applicable to the present appellant. From the said proviso, I am of the opinion that the term person and any other persons used in the proviso under Section 11A(2) means if in any case in the common show cause notice, if the duty demand was raised against more than one person under Section11A(1A) and duty interest and 25% of penalty proposed in the show cause notice is paid by both the person then against those both the persons proceedings will stand concluded, but if any other person on whom only penalty under Rule 26 of Central Excise Rules, 2002, or any other person is proposed then the proviso to Section 11A(2) is not applicable. I find, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine 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 prejudice to the provisions of section 9, 9A and 9AA, be deemed to be conclusive as to the matter stated therein: Provided further that if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officers, shall determine the amount of duty or interest not being in excess of the amount partly due from such person.] 4. Sub-section 1 of section 11 provides for issuance of show cause notice demanding short paid or non-paid duty within the period of either one year from the relevant date or five years where there is misstatement of suppression of facts. Subsection 1A which was introduced w.e.f. 13.07.06 gives the option to person to whom the notice is served under the proviso to sub-section 1 by Central Excise officer to pay dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r persons to whom notices are served for imposition of penalty under law but are restricted to other persons to whom notices are served under sub-section 1 of section 11A. As already observed, notices under sub-section 1 of section 11A are served only to those persons who are required to pay duty and have either not paid duty or short paid. Notices under sub-section 1 are not to be issued to other persons who may be employees of the manufacturing unit. As such analyzing the proviso to sub-section 2 of section 11A, it becomes clear that the proceedings are 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part. In case of part payment, the remaining amount will be subject to regular proceedings as per the law. 10 . A reading of the above circular nowhere clarifies the issue as to whether payment by the main manufacturer would result in stopping of proceedings in respect of all the persons or the same would amount to settle the dispute viz-a-viz the main manufacturer only. As such nothing turns on the said Circular. 11 . In view of the foregoing discussions, I am of the view that Commissioner(Appeals)'s orders allowing the appeals of respondents by extending the benefit of proviso to sub-section 2 of section 11A are not in accordance with law. However, in as much as the appellate authority has not discussed the merits of the case in each and every case, the impugned orders are set aside and matter remanded for fresh decision after independently examining the role of each and every respondents and the applicability of Rule 26. Revenue's appeals are allowed in above terms. From the above findings of Anand Agrawal case, it is crystal clear that person on whom the penalty under Rule 26 was imposed is not entitled for the immunity provided under proviso to Section 11A(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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