TMI Blog2016 (1) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... sons like traders who had purchased the goods, transporters who had transported the goods cleared by manufacturer/assessee, the Directors/employees of the manufacturer/assessee company. impugned order is correct and legal and does not require any interference, in the cases of individual respondents. - Decision in the case of Abir Steel Rolling Mills [2013 (7) TMI 405 - CESTAT NEW DELHI] followed - Decided against the revenue. - Appeal Nos. E/316/2010 & E/86553 to 86555/2015 - A/3778-3781/15/SMB - Dated:- 23-11-2015 - M. V. Ravindran, Member (J) For the Appellant : Shri H M Dixit, Asstt Commissioner (AR) For the Respondent : Shri V M Doiphode, Adv. and Shri Ashok Kumar Singh, Adv ORDER These appeals are filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Commissioner of Central Excise, Raipur vs. Abir Steel Rolling mills 2013 (296) ELT 90 and Commissioner of Central Excise, Raipur vs. Jay Prakash Agarwal 2013 (297) ELT 554 has taken a view on this point and held that no penalty is imposable on the co-noticees/appellants as the case may, once the main assessee discharges the duty liability, interest and pays 25% of the amount involved as penalty and held proceedings stands concluded. 6. I have considered the submissions made by both the sides and perused the records. It is seen from the records that the respondents herein were co-noticees and the adjudicating authority has not imposed any penalty by giving reasoning that provisions of Section 11A of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harishkumar H. Gandhi, Broker recorded on 09.01.2007. This statement can not be treated as sufficient evidence for imposition of penalty under Rule 26 ibid. Therefore, I do not find any reason to go into the technical irregularities raised by advocate Shri Sailesh P. Seth in the appeal filed by the appellant. Further, there is no penalty imposable on notice no. 03 under Rule 26 ibid for want of evidence. 10. As regards Noticee No. 04, I find that there is no documentary evidence to show that M/s. Shree Salasar Ispat Ind. P. Ltd., have received the clandestinely cleared M.S. Ingots, by Ahmednagar Alloys P. Ltd. There is no seizure of any quantity from the possession of M/s. Shree Salasar Ispat Ind. P. Ltd. Similarly no documentary evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the benefit of 1st proviso to Section 11A(2) can be extended when the assessee could not exercise the option under Section 11A(1A) within 30 days of receipt of Show Cause Notice for the reason that the Show Cause Notice did not mention the option available to the Assessee under section 11A(1A) and the Tribunal has decided this question in the favour of the assessee. However a Coordinate Bench of this Tribunal (Single Bench) in the case of Anand Agrawal (Supra) has held that since the words such person and other persons in proviso to Sub-Section (2) are qualified by the expression to whom Notice are served in Sub-Section (1) , the words other person would not cover, those persons who have been show caused by the same Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Section 11A (2), which would make the words other persons redundant, which is not permissible. 6.1 In my view, therefore, the words other persons used in first proviso to Sub-Section (2) would cover the co-noticees/persons who face the allegations of contravention of Central Excise Rules, which are linked with the allegation of deliberate/fraudulent short payment, non-payment or erroneous refund of duty against the person chargeable with duty facing the duty demand i.e. the person who are alleged to have knowingly dealt with the excisable goods, liable for confiscation in the manner mentioned in Rule 26 (1) of the Central Excise Rules, 2002 and for this reason have been Show Caused for imposition of penalty under this Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in case of Shitala Prasad Sharma Vs. Commissioner of Central Excise, Mumbai-I, reported in 2005 (183) ELT-21 (Tri. Mumbai) relying upon Apex Court's judgment in case of Union of India Vs. Onkar S. Kanwar reported in 2002 (145) ELT- 266 (S.C.) and also the Tribunal's judgment in case of D.P.Kothari reported in 2001 (135) ELT-669 has held that when the matter has been settled by the settlement commission against the main party and settlement commission has granted immunity to him from penalty, the co-accused can not be penalized under Rules, 209A of Central Excise Rules, 1944 as he can not face a penalty greater than the penalty on the main accused. Same view has been expressed by the Tribunal in case of S.K. Colombowala reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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