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2016 (1) TMI 438 - CESTAT MUMBAI

2016 (1) TMI 438 - CESTAT MUMBAI - TMI - Levy of personal penalty on co-noticees for abetting clandestine removal - revenue contended that adjudicating authority erred in not imposing penalties. - allegation of clandestine removal agianst the main noticee was confirmed - Held that:- when the proceedings against the manufacturer/assessee stand concluded on payment of disputed amount of duty plus interest plus 25% of the duty as penalty, there would be no sense in continuing the proceedings for im .....

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l 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 the Revenue against Order-in-Appeal No: AGS (245)04/09 dated 01/12/2009 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad. Since the appeals raise a common question they are being dispo .....

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d against other three respondents, it is the submission of the learned Departmental Representative that there was clandestine removal in the case of Ambika Waste Management Pvt. Ltd. and the respondents played an important role in abetting such clandestine removal. It is his submission that the adjudicating authority erred in not imposing penalties. Revenue preferred appeals before the first appellate authority who also concurred with the views of adjudicating authority but on a different reason .....

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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 .....

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him. The findings are in paragraph 8 to 10, which I reproduce below: "8. As regards Noticee No. 02 i.e. Shri Ambadas Santosh Nagargoje, I find that the case law reported in 2007 (220) ELT 167 in the case of M/s. Pasupati Prints Pvt Ltd, V/s. CCE is squarely applicable, wherein separate penalty imposed upon the Director of the Company was set aside. In the said case there were similar allegations of clandestine removal against Noticee No. 01 and who had paid duty before issuance of show caus .....

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statements of Shri 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 evide .....

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ednagar that they have removed the goods clandestinely and further their payments of duty, penalty & interest does not prove that the goods were received by Shree Salasar Ispat P. Ltd. Therefore, there is no evidence to impose any penalty under Rule 26 ibid on noticee no. 04." 7. It is also seen that similar issue came up before the bench in the case of Abir Steel Rolling Mills (supra) , wherein the Tribunal, after considering the law and the provisions thereof, held as under: "6. .....

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ch persons are covered by the words "other persons". Though the Appellant have cited Division Bench's judgment in case of Sonam Clock Pvt. Ltd. (Supra), on going though this judgment it is seen that the same is not on the issue involved in this case. The issue decided in this case is as to whether 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 r .....

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her person" would not cover, those persons who have been show caused by the same Show Cause Notice for imposition of penalty under Rule 26 and as such the words "other persons" would include only the persons from whom the duty not paid, short paid and erroneously refunded is to be recovered. With due respect, in my view, this view of the Tribunal in the case of Anand Agrawal (Supra) can not be treated as correct, as in term of Section 13 of General Clauses Act, 1897, in Central Ac .....

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he words "such persons". Revenue's contention would have been correct if the words "other person" were not there in 1st proviso to Section 11A(2) and in that case, there would have been no scope for doubt that on compliance with the provisions of Section (1A), only the proceedings against the person chargeable with duty would stand concluded. But since the legislature has used the words "such person and other persons" in 1st proviso to Section 11A(2), the words .....

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s, 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 Rule, either in the notice under section 11A (1) issued to .....

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assessee, the Directors/employees of the manufacturer/assessee company. 6.2 For the purpose of settlement of a case, Section 31(a) of Central Excise Act, 1944, defines "assessee" as any person who is liable for payment of excise duty assessed under this Act or any other Act and includes any producer or manufacturer of excisable goods or a registered person under the Rules made under this Act, of a private ware house in which excisable goods are stored. Under Section 32E the "asses .....

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